"Such use of ‘temporary tombs’
is attested in the Semahot, where temporary burial is implicit in the rule that
“Whosoever finds a corpse in a tomb should not move it from its place, unless
he knows that this is a temporary grave” and in the story told that “Rabban
Gamaliel had a temporary tomb [lit.‘a
borrowed tomb’] in Yabneh into which they bring the corpse and lock the door upon
it,” just as Joseph does with Jesus, “Later, they would carry the body up to
Jerusalem.”[20] This means that, as there was a commandment to bury the body
the night of death, except when something like a Sabbath intervened, Joseph
would have been required to place Jesus in a temporary grave and formally bury
him Saturday night. So the body could not have been in Joseph’s tomb Sunday
morning when all four Gospels claim the women visited it. Though they find it
empty, by then his body would have to be, by law, in the graveyard of the
stoned and burned."

Jeff's article contains many more important issues
than just that of the re-burial thesis
(since his article is more an analysis of Dr. Craig's broader defense of the Empty Tomb story),
and I will have to contain my remarks to an examination of the argument common to Jeff and
Richard, dealing with the re-burial thesis. Jeff uses the same sources as
Richard does (and I cannot find any divergence of argument in the relevant
section of his article), so I feel comfortable treating Richard's article alone.
Richard's article is focused specifically/exclusively on the re-burial
scenario, and his article contains the most detailed defense and development of
the case for re-burial (of the two), so I will focus on it. I personally enjoy
both the writings and occasional email exchanges I have had with Jeff and
Richard, and always profit from reading and thinking through their material.
This topic is also of interest to me, since I have not seen this argument
before.

The layout of Richard's argument is something
like this:

He defends the use of Rabbinic materials
to reconstruct the laws of burial at the time of Jesus. ("The Sources
for Jewish Law")

He argues that Jewish law was still in
force (including capital and burial law), even under Roman Rule. ("Jewish
Law under Roman Rule")

He describes, from the rabbinics and
other literary sources, that the bodies of executed criminals were
invariably buried by sunset. ("Down by Sunset")

He describes the rabbinic stipulations
concerning a special 'graveyard of the condemned', into which Jesus should
have been buried. ("Graveyards of the Condemned")

Next, he gives an explanation of
'temporary burial', in which a body was placed in the holding/staging
area, until proper burial could be resumed --due to Sabbath restrictions
on burial procedures. And he understands the actions of Joseph of Arimathea to be
simply placing the body there temporarily,
with full intentions of moving it
and burying it in the Graveyard of the Condemned at the end of the Sabbath
--Saturday night--due to exigencies of time.("Storage of a Body")

He distinguishes between Temporary and
Secondary Burial, arguing that Joseph's action was not a real burial at all.
("Temporary Holding vs. Secondary Burial")

His final section discusses the Jewish
emphasis on the "third day", as the measure of death's
actuality. ("On the Third Day").

Astute observers will no doubt recognize an immediate problem (still present in the
updated article) with the apparent inconsistency between points 3 and5/ 6. The
rabbinic data that Richard carefully adduces does not argue that the corpse must be "down" by sunset, but rather "FORMALLYBURIED"
by sunset. (The 'buried' word appears in all the sources he cites: Deut, Mishnah,
Josephus.) To make such a good case for this, and then turn around and argue
that Joseph only 'stored the body'--WITHOUT actually "rabbinically
burying" it--creates a huge potential problem for his position. If he didn't
legally bury the body, then J of Aviolated this allegedly sacrosanct moral boundary (which created the
'time urgency' needed for Richard's argument to begin with); if he DID legally bury the
body, then he didn't bury it in the 'graveyard of the condemned' like he was
supposed to (which was what originally created the 'need to re-empty the tomb'
for Richard's argument)…As we shall note below, the only acceptable reasons to
delay burial were to increase the honor of the burial (certainly not applicable
in Jesus case)…See the initial problem?

But let's go ahead into the analysis…

………………………………………………………………………………………………………………..

Before we get into the substance of his argument,
let us note that Richard has added a helpful clarification of the point of his
updated article. He explains that he is not trying to prove that his scenario
of the temporary storage is what 'actually happened', but rather that it is a
'possible natural explanation' for the empty tomb story, based upon the
sources.

This is all well and good, of course, but I would
like to point out that 'possible' (when used by historians) is different than
'possible' when used by scientists. A scientist might use possible to mean
something like 'conceivable' or 'with a smidgeon of statistical probability
among alternatives', whereas a historical normally means 'plausible' or
something 'predictable, given the historical situation'. For a scientist, for
example, it is 'possible' that Jesus was crucified like every other victim of
the time: He suffered on the Cross for 2-4 days before expiring, wasn't taken
down during Passover, and gradually decomposed on the Cross over the next year
or so--as a warning to Jews. This is what 'normally' happened to Roman victims.
It is a natural 'possibility' (even though it contradicts the sources and
historical situation).

On the other hand, historians would not call that a
'possibility'--because it is not a 'plausible' scenario. The strictures of
culture and custom of the day--in the Roman province of Judea--would have
rendered this outcome 'statistically unlikely'. Of all the 'naturally possible'
scenarios, only a few will be actually 'plausible' or 'preferable'. The more
the scenario predicts the 'texture' of the resulting historical 'residue', the
more plausible the scenario will be considered.

Applying that to our case here, the most plausible
scenario--historically speaking--will be that which (a) explains the texture of
the New Testament and the rise of the faith of the early believers; and which
(b) does not contradict known 'fixities' in the given culture/historical
situation.

The overall nature of Richard's argument will be
that the 'fixities' in the cultural situation (i.e., the legal system described
in the rabbinics) will preclude the body of Jesus still being in the tomb when
the women arrive on Sunday morning. Of course, his position will also require dismissal of the elements in the gospel accounts which portray
the tomb location as being known by others than Joseph: Nicodemus, the likely
burial 'company' involved, any household servants involved, the authorities
(who conceivably accompanied them, given the portrayal of their paranoia), and
the women--most of whom are mentioned are implied in the gospel narratives.
[This is a separate problem, and the required 'fabrication' of the gospel
narratives I simply cannot take up here in detail.]

The issue for our article, then, will be a simple
one: do we have adequate reason to believe the legal situation/context Richard
depends on for his argument actually exists,
and at the same time, are there that render the normal applicability of that
alleged legal/cultural situation invalid?

First, and most importantly,we should note the deeply
problematic use of rabbinical literature for understanding this period, with
much of modern scholarship in sharp disagreement with the position taken by
Richard .

We live in a
post-Neusner world! Modern confidence in being able to decide whether/how a
particular passage in the Rabbinics applies to pre-70 Judaism(s) has been
severely reduced, due to the methodologically rigorous work of Neusner, his
students, and even his combatants (e.g. E.P. Sanders). Scholars publishing in
the last two decades of the twentieth century have consistently issued 'disclaimers' and offered 'caution' in their
use of this material, largely due to the work of Neusner and Co.

Consider this
lengthy description of the problem, from his Introduction
to Rabbinic Literature [HI:IRL:653]:

"Now to generalize: with documents such as those of rabbinic
Judaism, bearing no named author, coming to us in an indeterminate and sparse
textual tradition, we have yet to formulate a
valid means for dating, or even a clear definition of what we might
mean by assigning a date to a document. It is easier to explain what we do not
now know than to define what we should want to find out. This minimalist
position of course contradicts the maximalist one that reigns in the standard
accounts of rabbinic documents and their dates.

"That
position assigns very specific dates to the various rabbinic documents; these assignments take for granted a position rejected
by nearly the entire academic world, which is, believe everything
unless you find reason to doubt something, the formulation regnant at last
glance in the Jerusalem school, the Jewish seminaries of the United States, and
other centers of the study of Judaism other
than academic ones. Since all
documents present numerous attributed statements, we date the various documents
in accord with the assumed dates of the authorities that are cited in them. Now
this conception, gullible and primitive and nearly universally rejected,
yields groupings of documents, e.g., before 200 are "Tannaite" in
that all the authorities in said compilations
are assumed to have flourished in the first and second centuries.
Not only so, but attributions date sayings
within documents, so the date of 200 signifies not only closure at
that time but also the latest date for whatever is unattributed in the
document; much that is in the document, in accord with this theory, is much
earlier.

"Most
talmudic historians, and all of them in the State of Israel, accept as fact all attributions of sayings and
therefore assume that if a document's authorship presents a saying in a given
sage's name, that sage really made such a statement, which therefore tells us
what he, and perhaps others, were thinking in the time and place in which he
lived. A corollary to this position is that a saying that bears no
attribution is "earlier than" a saying that has one. Hence what is
anonymous is older than what is assigned (how much older depends on the
requirement of the person who assumes that fact). If, for instance, we have a
named saying and, in context, an anonymous one that bears a contrary view, the
anonymous saying is not deemed contemporary with the named saying on the same
topic but earlier than the assigned one. It goes without saying that much
energy goes into restating these propositions, but not much has been invested
in demonstrating them. That is because they lie far beyond the limits of the evidence. Still, these two
complementary positions presuppose a literary process in which sayings
circulated independently of the documents in which they (later on) are written
down and took shape within the circle of the disciples of a master to whom they
are attributed. The position on the literary
process that yields the documents that now contain these sayings has not yet
been squared with the literary traits of those same documents, and
analysis of those traits scarcely sustains
the hypothesis of inerrant attribution and its corollary. These
results of course also dictate the dates of documents. Tannaite documents
contain only authorities who occur in the Mishnah, so they all are supposed to
originate before ca. 200, even though, as a
matter of fact, they ordinarily cite the Mishnah and therefore ought to be
dated later than the Mishnah, after 200, and I think, much later.

"I do not exaggerate. Consult any encyclopedia, and you will find that
the Mishnah was redacted in 200, the Talmud of Babylonia in 500, and so on and
so forth. One consideration makes improbable the certainty that presently
prevails. The established protocol for dating
a document rests on the premise that statements attributed to a given rabbi
really were said by a historical figure, at a determinate time, and
so permit us to date the document at the time of, or just after, that figure;
if all the rabbis of a document occur in the Mishnah as well, then that
document is assigned to the period of the Mishnah and given a date of ca. 200.
If the last-named rabbi of a document is assumed to have lived in ca. 500, then
the document gets the date of 501. In
general, documents presently are dated by reference to the names of the authorities
who occur in them, e.g., if the last-named authority is a rabbi who
flourished in the Mishnah's period, the document as a whole is assigned to
"Tannaitic times:' that is, the first and second centuries, when, it is
generally supposed, the Mishnah came to closure. But that date then presupposes the reliability of attributions and does
not take account of pseudepigraphy in the rabbinic manner. The same sayings may
be assigned to two or more authorities; the Talmud of Babylonia, moreover,
presents ample evidence that people played fast and loose with attributions,
changing by reason of the requirements of logic what a given authority is
alleged to have said, for instance. Since we have ample evidence
that in later times people made up sayings and put them into the mouths of
earlier authorities (the Zohar is only the best-known
example!), we
have no reason to assign a document solely by reference to the names of the
authorities found therein.

"But no
other basis for dating documents--than gullibility about their contents-- has
yet been devised, and since language usages are dated
(in the Judaic and Jewish institutions) in accord with the dates of sages to whom
sayings are attributed, dates that derive from Gaonic historians
who flourished half a millennium after the times of those to whom
they assign precise dates, philology provides no help whatsoever. Not
only so, but the so-called philological dating, based on language usages, rests on
precisely the same premise. If a saying is attributed to
Aqiba, that means the usage of language in that saying attests to first- or
early-second-century conventions, and, consequently, other such usages also
place the documents that contain them in the first or early second century. What we have therefore is
simply an extension, to the dating of documents and of their contents, of the
familiar gullibility and credulity of talmudic studies: our
holy rabbis really made these statements, so the rest follows."

Compare the
statements of Marc Bergman, in "Pseudepigraphy in Rabbinic
Literature" [HI:PPAPLDSS], in which
the foundation of dating (attribution) appears gossamer:

"Considering
the fact that the Rabbis seem to have no qualms about putting words in the
mouth of God and biblical characters, such as Moses, it should perhaps come as no surprise that they might occasionally put words in
the mouths of fellow rabbis. Nonetheless, the aspect of rabbinic
pseudepigaphy [sic] which has elicited the most scholarly discussion is the sometimes unreliable ascription of statements and
traditions to named rabbinic sages." (p.31f)

"A number
of detailed studies have shown that particularly in the Babylonian Talmud there
are statements which are incorrectly and
probably even falsely attributed, fictitious baraitot (i.e.
tannaitic statements not found in the Mishnah) and stories about sages that
seem more legend than history." (p.33f)

So, when we
get to looking at modern 'disclaimers' in the scholarly literature, we see the
effects of this (e.g., R.E. Brown and John Meier)):

"We must be careful to recognize
limitations in our knowledge of burial practices in Jesus' lifetime. Even
before recent sensitivity about the limited applicability of
the Mishna to Jesus' time, and therefore about mishnaic rules
for burying the bodies of the condemned, Buckler recognized that the references to burial in Josephus indicated a different situation in
the 1st cent. from that envisioned by later information." [DM:1206,
n.1; note, by the way, that the unquestionably early Josephus differs from the
rabbinics on details about burial
practices!]

"Some
aspects of the mishnaic practice were surely
ideal or reflect a post-NT situation…" [DM:1210]

"It
was common among older Jewish scholars to rely heavily on the Mishna (ca. A.D.
200-220), the Tosepta (3d century), the Palestinian (or Jerusalem) Talmud (5th
century), and the Babylonian Talmud (6th century)as well as the rabbinic midrashim. from various centuries to
reconstruct the historical Pharisees and Sadducees. More recently, Jewish scholars like Jacob Neusner and Shaye Cohen, as
well as Christian scholars like E. P. Sanders and Anthony Saldarini, have urged
greater caution in the use of rabbinic literature to delineate the very different
conditions of Judaism in pre-70 Palestine." [MJ:3:305]

In other
words, one cannot assume they apply 'backward in time'--each application has to
be evaluated separately.

We will have
to use the material, of course,
but we had better remember the 'softness' of conclusions drawn therefrom.

The injunction
of "case by case" often noted by scholars, is appealed to by McCane
(a source referred to by Richard). We can use this to illustrate the complexity
of the subject…

McCane argues:

"Comment
is called for here on current scholarly suspicions regarding the value (or lack
thereof) of the Mishnah as a historical source for the world of Jesus. Of course one cannot
naively assume that this third-century text preserves reliable information
about first-century Jewish life. In many cases it demonstrably does not.
On the specific topic of burial practices,
however, there is strong evidence in favor of using the Mishnah. First, at points where it can be checked against the
archaeological evidence the Mishnah has already been shown to be
accurate. m. B. Bat. 6:8, for
example, records a rabbinic discussion about the ideal dimensions for burial
niches, and the dimensions given in the Mishnaic text correspond closely to the
actual dimensions of so-called "loculus" niches typically found in
first-century Jewish tombs in Palestine. m.
B. Bat. 2:9 stipulates that tombs should be located at least fifty
cubits outside of a town or city, and archaeology confirms that this practice
was typically followed both in first-century Jerusalem and at Qumran. Second, it is an anthropological commonplace
that burial practices change very slowly. Theological ideas about death and the
afterlife are typically vague and fluid, but
burial practices and customs have a weight and mass all their own.
From this point of view, there would be nothing particularly remarkable about a
third-century text which accurately preserved information about burial customs
from two centuries earlier. For these reasons I do not hesitate to make
critical use of the Mishnah--along with the tractate.Semahot--in conjunction with other sources of evidence on
this specific topic" [McCane, [NT:AAJ:437,
n.9]]

In note 8, he had accepted
Zlotnick's dating (1966) of the Semahot at the end of the third century.

Working backward, let's look
at these three issues (Semahot,
fixity of burial customs, archeology):

1.
On the Semahot:

If we first remember that
the Neusner quote above pointed out the 'gullibility position' of accepting (a)
attributions; (b) philological arguments; and (c) half-a-millennium-later
historical/Gaonic judgments,and we then look at
Zlotnick's summary of his reasons for dating Semahot "early", we find
an amazing correspondence:

"We have thus found
nothing in Sm pointing decisively to a late date. On the contrary, it can now
be stated that the latest authorities mentioned in the text are the Tannaim of
the fifth generation, Rabbi Judah the Prince and his contemporaries [Neusner's
'attribution' issue!].
Moreover, the language is Mishnaic Hebrew, and its style and structure, the
literary formulation and sequence of the Halakah and the Aggadah, is always
that of the Tannaim [Neusner's 'philological' issue!]. In the absence of further textual evidence
and in view of the fact that Sm is clearly identified as Tannaitic by the Gaon
Natronai and by all the medieval scholars [Neusner's
'half-a-millennium later' issue!] , it seems preferable to submit to the authority of the ancients and
suggest an early date--the end of the third century." [HI:Sema:8-9]

In the Dictionary of Judaism in the Biblical Period,
Neusner and Green give this entry for 'Semahot'--notice
the difference usage of the same data
adduced by Zlotnick:

"Semahot a minor rabbinic tractate on death
and mourning, published with the Babylonian Talmud; euphemistically titled
joys, though also known as Ebel or Ebel Rabbati, that is, Mourning. Absent from
the Talmud's Munich manuscript, Semahot appeared in the first printing of the
Babylonian Talmud (Venice, 1523). The earliest references to it are by
Franco-German scholars of the eleventh century C.E. Contrary to medieval
commentators, it is not clear whether references at B. Moed Katan 24a and 26b to a tractate on mourning attest
Semahot in particular…Scholars place the
final redaction of Semahot in the mid-eighth century C.E. Since it is in Mishnaic
Hebrew and the latest rabbis it cites are third century-C.E. contemporaries of
Judah the Patriarch, it maycontain earlier material.
Its fourteen chapters discuss the legal status of a dying man, treatment of
corpses of suicides or those who were executed, burial practices, and the laws
that apply to mourners in the first seven and thirty days after burial. Chapter
8 contains a detailed martyrology. [HI:DictJBP,
s.v. 'semahot']

2.
On the anthropological commonplace of the relative fixity of burial practices:

The period in which we are
interested in is actually one of very high--and easily documented by the
archeaologists--change!

"In summary, what is most extraordinary in the Jewish
burial customs of the Second Temple period is the astonishing fact that
within a comparatively short span of time burial practices, which are
typically among the most conservative customs in a society, underwent rapid changes. Loculi tombs appear with primary
coffin burials, and within a century secondary burials in ossuaries in similar
loculi tombs becomes the prevalent custom, a practice lacking parallels in any
other contemporary neighboring culture. At the same time, these customs were
short-lived and show little affinity with either the earlier Israelite customs
or the later Jewish rituals of late antiquity which contain only traces of these Second Temple customs.
Furthermore, archaeological investigation has been unable to uncover the causes
for these ossuary burial innovations.
It may be conjectured that the Jews blamed their loss of independence and their
state, in 6 C.E. [sic], on their sinful behavior; the custom of secondary
burial of the bones in ossuaries, after decay of the flesh, may have become a
way to expiate sins. The later Beth-shearim necropolis (3d–4th century c.e.) shows the practice of individual
burial in various kinds of sarcophagi and was a central cemetery for Jews both
in the land of Israel and in the Diaspora." [Rachel Hachlili, [ABD, s.v. "Burials (Ancient Jewish)";
note: Hachlili is cited in McCane's references in his footnote 9.]]

3.
On thecongruence of archeology with Mishnah/Semahot stipulations:

I am not sure I understand
McCane's data here, frankly. Baba Bathra
gives a niche size of approximately 6 ft by 1.5 ft by 1.5 feet, and the
excavations at Jericho and some of the Jerusalem data seem to have different dimensions:

"The tombs found in these two cemeteries [Jerusalem, Jericho] may
be divided into two types: the first consists of rock-hewn loculi tombs and the
second type is a monumental tomb which is rock-hewn and has a memorial or nefesh standing next to or above it. Two
basic tomb plans exist: one is called the loculi type (kokhim) and the other is the arcosolia.
Some tombs are equipped solely with a burial room. Both types of plans are
found in the Jerusalem necropolis, but the Jericho cemetery consists only of
loculi tombs which are hewn into the hillsides. Both serve as family tombs but
with provision for separate burial of each individual…The form of the loculi
tomb consists of a square burial chamber, often with a pit dug into its floor
to enable a man to stand upright. From one to three arched loculi 1 m high
and 2 m
long(kokhim) are hewn into
three walls, the entrance wall excepted." [Hachlili again, [ABD,s.v. "Burials (Ancient
Jewish)"]

But many of the tombs DO conform to the
dimensions in the Mishnah, but I am not sure this proves very much.

We have other data that indicates that the
Mishnaic portrayals are NOT necessarily representative:

We have already noted that Josephus' descriptions are at odds with
them (and not
'minor points of interpretation'):

"We must be careful to recognize
limitations in our knowledge of burial practices in Jesus' lifetime. Even
before recent sensitivity about the limited applicability of the Mishna to
Jesus' time, and therefore about mishnaic rules for burying the bodies of the
condemned, Buckler
recognized that the references to burial in Josephus indicated a different
situation in the 1st cent. from that envisioned by later information."
[DM:1206, n.1; note, by the way, that the unquestionably early
Josephus differs from the rabbinics on details about burial practices!]

"According to Rabbi Eliezer in the Mishnah (Sanhedrin 6:4), all
who are stoned are hanged on a tree afterwards. The other rabbis say (ibid.)
that only the blasphemer and the one who worships an idol are hanged, whereas Josephus restricts hanging to the
blasphemer. Goldenberg (66-68), in disagreement with Weyl (1900:30-31),
declares that Josephus is, in this respect, in accord with the earlier
uncontroversial tannaitic halakhah that was contemporary with him [tn:
concerning who is hanged]. See Weyl (1900:30-31). According to the Tosefta
(Sanhedrin 9:11), the mildest and most humane form of death must be sought. A
baraita in the Talmud (Sanhedrin 46b) states that the verdict is delayed until
just before sunset. Then judgment is pronounced and the culprit is put to death
immediately. Then, in order to fulfill the requirement of hanging, one person
ties him up and immediately thereafter another unties him and takes him down.
Goldenberg (68-71), noting that this
tannaitic statement apparently contradicts
Josephus, who says here that the blasphemeer is stoned and then hanged for
a day, suggests that the tannaitic description of the hanging does not reflect
actual practice but is rather a theoretical interpretation of Deut. 22:21-23.
"[HI:FJTC3:401,
note 596, on Ant 4.202]

"Kohler (1931:72-74), however, remarks that the
Mishnah (Sanhedrin 4:4) by no means makes it imperative to hang up the corpse
after the execution. Weyl (1900:48) concludes that Josephus is here preserving a law unparalleled in Halakah."[HI:FJTC3:401,
note 597, on Ant. 4:264]

Essene
burial customs are also somewhat at variance:

"Essene Burial Customs.
One sect of Jews during the 1st century c.e.
the Essenes, practiced
a completely different primary burial in individual graves as
evidenced by their cemeteries at Qumran and En el-Guweir. The main cemetery of
Qumran is located E of the settlement and contains some 1100 graves (de Vaux
1973). Its organized plan consists of rows of single graves, usually oriented
N–S. The graves are marked by oval-shaped heaps of stones placed on the
surface. Several graves contained signs of wooden coffins. Most of the
excavated tombs contained individual burials; male interments only were found
in the main cemetery (de Vaux 1973:46, pls. XXV–XXVI; Bar-Adon 1977:12, 16,
figs. 19–20). On the outskirts of this cemetery and in the smaller cemeteries
of Qumran, a few females and children were interred. The large number of males
found in these graves compared to the small number of women and children might
point to the importance placed on celibacy in this community…The Essene burial
practices have a
few elements
in common
with those of the Jerusalem and Jericho cemeteries. The coffin burials at Qumran,
though later in date, are comparable to those found at Jericho. Grave goods
were discovered with women and children at Qumran and En el-Guweir, as well as
remains of mattresses and cloth (indicating that the dead had been wrapped in
shrouds). Broken storage jars were discovered on top of the graves at En
el-Guweir and Qumran, probably a custom parallel to that of placing storage
jars outside the tombs at Jericho…The contrasts in these burial practices
indicate differences in religious philosophy toward the dead among the Jews of
this time and reflects the separation of the Essenes from more mainstream
Judaism. Single-person burials at Qumran and En el-Guweir cemeteries stress the
importance of the individual rather than the family." [Hachlili, [ABD,s.v. "Burials (Ancient
Jewish)"]

And even the 'very Rabbinic'
site at Beth-shearim shows many differences:

"The Beth-shearim Necropolis.
The Jewish necropolis at Beth-shearim (M.R. 162234) was the central burial
ground for Jews from the land of Israel and neighboring areas. The majority of
the catacombs date to the 3d–4th centuries. Beth-shearim was expanded after the
death of Rabbi Judah in the latter part of the 3d century. The terminus ante quem for the catacombs is
the date of their destruction in the year 352 c.e.
(Avigad 1976:260)…The Beth-shearim burial place consists of catacombs, with a
frontal courtyard and portals constructed of stone doors imitating wooden doors
with nails (Mazar 1973:Plan 1–5; pl. VI; Avigad 1976: figs. 3–5; pls. 25:1;
27:2; 28:1). Several burial halls spaced out along a corridor were hewn in the
rock (see Avigad 1976: fig. 31). The graves were mainly loculi or arcosolia
types and it
is clear that burial customs—that is, primary inhumation in arcosolia, coffins,
and sarcophagi—have little in common with those of the Second Temple period.
On the walls were carved, painted, or incised decoration, in a popular art
style. Decorated marble or clay sarcophagi contained the primary burials of
local Jews or the reinterred remains of those returned from the Diaspora (Mazar
1973; Avigad 1976). By this time burial had become a commercialized, public
enterprise and was directed apparently by the burial society (Hebrah Kadisha), who sold burial places
to any purchaser (Avigad 1976:253, 265)." [Hachlili, [ABD,s.v. "Burials (Ancient
Jewish)"]

Indeed, the rabbinic literature itself
documents a number of funeral custom innovations
of the period. For example, b Moed Katan 27a-b lists a number of innovations that
occurred in burial procedures:

"GEMARA. Our Rabbis taught: Formerly
they were wont to convey [victuals] to the house of mourning, the rich in
silver and gold baskets and the poor in osier baskets of peeled willow twigs,
and the poor felt shamed: they therefore
instituted that all should convey [victuals] in osier baskets of
peeled willow twigs out of deference to the poor. Our Rabbis taught: Formerly,
they were wont to serve drinks in a house of mourning, the rich in white glass
vessels and the poor in coloured glass, and the poor felt shamed: they instituted therefore that all should
serve drinks in coloured glass, out of deference to the poor. Formerly
they were wont to uncover the face of the rich and cover the face of the poor,
because their faces turned livid in years of drought and the poor felt shamed;
they therefore instituted that everybody's face should be covered, out of
deference for the poor. Formerly. they were wont to bring out the rich [for
burial] on a dargesh aid the poor on a plain bier, and the poor felt shamed:
they instituted therefore that all should be brought out on a plain bier, out
of deference for the poor. Formerly they were wont to set a
perfuming-pan under [the bed of] those that died of intestinal disorders, and
the living suffering from intestinal disorders felt shamed: they instituted
therefore that it should be set under all [alike], out of deference to the
living that suffer from intestinal disorders. Formerly they were wont
to subject to [ritual] ablution all utensils that had been used by [dying]
menstruants, and the living menstruant women felt thereby shamed: they
instituted therefore that they should subject utensils used by all [dying]
women alike, out of deference to the living menstruants. Formerly they were wont
to subject to [ritual] ablution all utensils used by those suffering from a
flux. while dying, and the living suffering from a flux felt shamed: they
therefore instituted that they should subject to ablution utensils used by all,
out of deference to the living suffering from flux. Formerly the [expense of]
taking the dead out [to his burial] fell harder on his near-of-kin than his
death so that the dead man's near-of-kin abandoned him and fled, until at last
Rabban Gamaliel came [forward] and, disregarding his own dignity, came out [to
his burial] in flaxen vestments and thereafter the people followed his lead to
come out [to burial] in flaxen vestments. Said R. Papa. And nowadays
all the world follow the practice of [coming out] even in a paltry [shroud]
that costs but a zuz."

We must also remember the comment made by Ze'ev Safrai:

"The public at large did not obey the rabbis.
Among the Jews, only
a minority followed the rabbis, obeyed their decisions and was influenced by
their sermons and moral teachings. It was alsothis
small group that influenced the outlook of the beit
midrash; its customs and attitudes
constitute the social and historical background for the decisions made in the belt midrash. According to this
perspective, then, the texts do not provide a true image of the community, but that of a
small group, a social stratum whose ties with the wider public were few and problematic."
[HI:ERP:5-6; note: he recognizes the basic
validity of this (represented as others' opinions), but points out that it does
not apply to ALL areas of social life.]

Part of Richard's problem, I
think, is a misunderstanding of the nature of
the rabbinic material. He has numerous statements about how it was
'law', conservatively preserving ancient law (even when the law was no longer
in effect, due to changes in historical circumstance), and these rabbinic
descriptions are 'innocent until proven guilty' (his amazingly anachronistic
"Consequently, unless specific reasons can be adduced for thinking
otherwise, the contents of these texts (he includes the Talmud in this!)
applied to the time of Jesus"!).

To demonstrate this, let me
give data/conculsions from specialists in
this field, about the character of the mishnaic and post-mishnaic
materials. These scholars would represent a wide cross-section of views, from
the conservatism of Zlotnick, to the moderate positions of Sanders and Lapin,
to the studied minimalist view of Neusner. What we will see from this is that
the rabbinic literature:

1.Is
not a legal code at all, but a history of legal and semi-legal debate

2.Described
the fictional, idealized world, desired/planned/invented by the rabbi's

5.When
it did describe a real world, it sometimes applied to ONLY an ancient one--and
not the world of Jesus.

6.When
it did describe a real world, it sometimes/often applied ONLY to
post-2nd-Revolt Galilee (where the rabbi's resettled)

7.Many
elements it 'proscribed' are known to have been not in practice

A. First the conclusions of Hayim
Lapin, who studied
the "most-likely-to-reflect-reality" economic tractate of Baba
Mesia:

1."It also appears likely that
throughout late antiquity Rabbinic authority
continued to be unofficial and limited to adherents whose number and
social distribution we are in no position to estimate. Rabbinic texts polemicize against other, non-Rabbinic
judges ("those who are appointed for money") who have been plausibly
identified with the official civic judges of the Galilean cities.
Rabbinic narratives about cases judged by Rabbis may similarly be taken
regularly as cases of arbitration by a holy (or otherwise significant) man…On
balance, then, there is very little positive
evidence that Rabbis served as the governing body of Roman Palestine,
or even the class which provided the staff for that government. Such evidence
as we do have actually suggests the opposite: that Rabbis at the time of the
redaction of the Mishnah (and later) may have been a prominent wealthy group
with claims to special authority, but they had little institutional authority and no official standing. In
this respect, they may have been like other (frequently religious) figures in
the ancient Greco-Roman world who served as judges, miracle workers and arbiters
of public opinion. Nor does it seem likely that Rabbinic law as such (for our purposes we
may focus on the Mishnah) served as the legal code of the Jewish population of
Roman Palestine." [X03:ERCL:18f; Note: not a legal code,
not in effect]

2."This means that part of the
historical investigation of m. Baba Mesia
involves exploring the elusive boundaries
between the real world in which Rabbis lived and the constructed one of the
Mishnah." [X03:ERCL:20; Note: a fictional world]

3."Instead, attributed statements
present what contemporaneous or later
tridentsthought a particular sage
might have ruled in a given case." [X03:ERCL:26; Note: not an 'enormously conservative'
process of tradition!]

4."In framing the study in this way,
as I have already pointed out, I am not
denying the fictional character of the Mishnah in general or Baba
Mesia in particular. The goal of the present study is rather to explore the horizons of this fictional world."
[X03:ERCL:29;Note:
a fictional world]

5."…help identify where the Mishnah reflects, distorts, or simply ignores the
realities of the world in which the Rabbis who produced it
lived." [X03:ERCL:30;Note: a fictional world]

6."The Mishnah is neither an authoritative archive of laws,
practices and events, nor even a mine of 'facts' to be uncovered and, if
necessary, cleansed, purified or cut to shape." [X03:ERCL:35; Note: not a body of law!]

7."My goal, therefore, has been to
understand how Rabbis imagined
the proper working of Jewish economic practices in such an economy." [X03:ERCL:120;Note: a
fictional world]

8."Nevertheless, Rabbis do not appear to have had institutional
authority in Galilee beyond their own adherents in the second or
third centuries. Moreover, the legal program that the Mishnah outlines is ultimately an
ideal one, in which the Temple still stands and in which high
priest and king still function." [X03:ERCL:237;
Note: not a real,
applicable law code]

9."Thus, although the Mishnah may not
'document' the social and economic life of Jews in Roman Palestine, it does
indeed offer us an opportunity to examine how an articulate group of Jews
within Palestinian society chose to depict that social and economic life...Instead, the tractate is better seen as the product of
the Rabbinic community for its own specialist audience." [X03:ERCL:238; Note: not a real, applicable law code]

10."In presenting this study I have attempted
to use the text and concerns of m. Baba
Mesia as the framework for my analysis. To conclude, I wish briefly
to locate the development of m. Baba Mesia
within a somewhat wider perspective. In the one hundred and fifty years between
50 and 200 CE, Palestinian Judaism had seen major political, social, and
religious changes, not least of which were the suppression of two revolts, the
destruction of the Jerusalem Temple, the garrisoning of the province with two
legions, and increased urbanization. It is in the wake of a period of
"pacification" and integration into the Roman empire that the Mishnah emerged, with its imagined
world in which the Temple still stood. Mishnaic civil law is not best seen as a
codification in the late second century of laws that by that time were of great
antiquity. Indeed, both from the literature of the second
Temple period and from what Rabbinic texts themselves attribute to their
earliest tradents, questions of contract and property appear to have been at
best questions of secondary importance or, in the case of the Qumran sect, of
sectarian governance. At precisely the time during which the economic practices
of Palestinian Jews would have come increasingly under the direction of Roman
provincial authorities, m. Baba Mesiaattempted to invent a
"Jewish" civil law in which officials of any government (except for
the angareia) are essentially absent." [X03:ERCL:240;
Note: NOT a
codification of conservatively transmitted ancient laws, but an invented one!]

B.Next, the conservative and
traditional Zlotnick, who, although he believes much of the material is ancient (and
applied in earlier times), still recognizes that some of the legal material is
theoretical and actuallydisagrees with the legal praxis of actual courts:

1."What clearly emerges from the many
rules, cases and decisions is that we are dealing with two kinds of law: halakah or halakah stam (theoretical
law) on the one hand and halakah le-ma'aseh
(law in effect) on the other hand. Halakah
stam is studied in the schools by scholars and their student. Here
rules are formulated and applied in the process of the dialectic. Halakah le-ma'aseh however, is the domain
of the court. Here jurists sit and decide the practial [sic] case. [X03:IPM:215]

2."Nevertheless, the directives of jurists are not identical to those
of scholars. As we have learned from Rabbi Johanah, a conclusion resulting from a theoretical discussion
need not agree with a decision in a real cast. At court the attested
tradition was supreme." [X03:IPM:217]

3.Rabbi's Mishnah, as such, was the primary
source for halakah le-ma'dseh.
This is not to say that the law was decided from it, in every detail even for
his own generation, let alone the generations that followed. Nor is it to say
that Rabbi had this as his objective. The
Mishnah was never a code in the narrow sense. We have noted, for
example, how Samuel identified a section le-halakah
and not le-ma'dseh, as an academic text for the schoolhouse and not as
statutory law for the court. To be sure, in most of the Mishnah we
find elements of codification - normative and casuistic law presented with surpassing
brevity and lucidity. But as we have tried to show, the Mishnah is also made up
of other constituent parts: narrative passages, aphorisms, rules of conduct,
customs, and judicial legislation in the form of gezerah and takkanah. Even in the strictly legal aspects of the work,
Rabbi's Mishnah consistently breaks with what one would expect in a strict code.
It contains laws that were simply voted down and rejected, and still others
that lost their practical force as a result of the destruction of the Temple. More than one-third of the Mishnah, all the tractates
dealing with sacrifices and most of the tractates dealing with ritual purity -
that is, the lion's share of the Orders Kodosim
and Tohorot - would come under
the category of hilketa le-meshiha,
"law for the time of the Messiah"…There are still other
laws, discussed at length in the Mishnah, with even less immediate application:
rules treating of situations that are only
theoretically possible. They come under the catetgory [sic] of deros we-kabbel sakar, ”expound it and
receive a reward!" Much of the Mishnah consists of minority views that
could some day serve as a basis for new decisions and, of course, there are
those many instances where the law was left
undecided." [X03:IPM:225f]

4."In more than one instance, laws are recorded in the Mishnah that could have
applied only to a limited period in remote antiquity…" [X03:IPM:35]

5.He gives examples of Orlah 1:2 (fruit trees in the time of
Joshua). "Nearly all of the tractates in the Orders Kodosim and Tohorot deal with sacrifices and ritual defilement. Most of
these tractates lost their sense of immediacy with the destruction of the
Temple….Yet we see they were not removed. On the contrary, they represent more
than a third of the substantive law in Rabbi's Mishnah." [X03:IPM:36]

6."Still other laws stopped being
applied even before the destruction of the Temple."He gives the examples of Sotah 9.9 (breaking of the heifer's neck
in Deut 21), which abrogated [by 54 ad] the laws of 8:1-8; and also in Sotah 9.9 (ordeal of waters) which
abrogated Sotah 1-6). [X03:IPM:35f]

7."To the laws that lost their
practical force before the destruction of the Temple and to the vast number
that became inoperative as a result of its destruction--laws that are termed
'laws for the time of the Messiah'--we can add another category: laws treating of situations that are only
theoretically possible." [X03:IPM:37]

C. Next, E. P. Sanders--Neusner's main sparring partner in this
area--agrees with him on the fictional, 'wish it were so' world of the Mishnah.
He also demonstrates some of the cases where Mishnaic law was NOT observed (and
likely never was):

1.He points out that the 'houses of
separation' of the niddah were
NOT pre-existing customs, with the possible
exceptions of the aristocratic few. For half the population to spend one-fourth
of their lives (menstruating women) in separate housing would have been a real
estate agent's dream come true! [X03:JLFJM],
pp 156-161]

2."I find some of Epstein's arguments convincing
and some not. I am not, for example, persuaded that Sanhedrin 6.1-7.3, the
discussion of the four kinds of execution , is early. Epstein thought that it
must be, since forty years before the destruction of the temple the power to
inflict capital punishment was taken away from the Sanhedrin. He assumed that
the discussion of death penalties was practical, and so thought that it must be
pre-30. I think it more likely that the
discussion is theoretical, and that the Mishanh's definitions of 'stoning',
'burning' and the like never controlled actual practice. The
difference between rabbinic theory and real life is pointed to in Sanhedrin 7.3"
[X03:JLFJM:167; Note that this is our SPECIFIC passage--He
is convinced that the legal code Richard will rely on here simply did not really exist.]

3."In the sphere of Sabbath rules,
then, we see unconscious interpretation which has become law, a conscious
addition to it which was also law, and a peculiarly pharisaic practice which
others did not accept…We have also come upon
pharisaic traditions which were not accepted by others…" [X03:JLFJM:107; Note: it was not an accepted 'law' at all]

4."Similarly it is not possible that
the Sadducees were forced to accept the Pharisee's customs. Were this the case,
they would have been forced to accept them all, but it can be demonstrated that
this did not happen. Josephus's point is that
the Sadducees rejected the
Pharisees' non-biblical traditions, and there is ample evidence to support this
statement. We saw several instances in the six examples of
non-biblical customs immediate above." [X03:JLFJM:108;
Note: it was not
an accepted 'law' at all]

5."A third passage containing the word
'torah' may be briefly mentioned. According to Sanhedrin 11.2, the torah went
forth to all Israel from 'the Great Court that was in the Chamber of Hewn
Stone'. Does this mean that the rulings of this court were equal to the written
law? We deal here, of course, with rabbinic
imagination. In the real pre-70
temple (the location of the Chamber of Hewn Stone) there was no court composed entirely of pharisaic
sages which dictated law to Israel. The real-life court, wherever it met, was headed by the high priest, who
is barely mentioned in Mishnah Sanhedrin (2.1)." [X03:JLFJM:114; Note: this deals with our issue too--the
'capital court' is a rabbinic fiction.]

6."On the other hand, scholarship
before Rivkin and Neusner sinned on the other side. I am old enough to remember how it used to be. The entirety of rabbinic
literature was taken to be 'Pharisaism'. Christian scholars
especially thought of the Talmuds and Midrashim, running down to the eighth
century or so, as forming the 'background' of the New Testament, and they used
them as such: that is the point of Billerbeck's commentary, which has been and
still is used by people who want to write about the 'Jewish background'. But
many Jewish scholars worked on the same assumptions, and others were only
marginally different. This had a semi-academic basis: people thought very
generally about 'tradition', and they regarded ancient Jews as hanging on to
inherited material. An early tradition might crop up anywhere. The theory
'might crop up anywhere' often justified choosing whatever struck one's fancy. This view, that all rabbinic literature is
'traditional', and that many or most traditions are old, dominates the older
literature. To mention a completely innocuous example: H. St John
Thackeray, in translating Josephus, often referred in the notes to 'early
tradition' or 'tradition', by which he meant the wide range of rabbinic
parallels or contrasts which were adduced by Julien Weill, the French
translator. Talmudic scholars sometimes refer to the entire vast body of
rabbinic literature as 'tradition'…Neusner has done more than any other
individual to change this entire way of thinking. As I wrote above, it is not
that he has a clear programme and is consistently working it out. He continues
to publish things whose fundamentalism would embarrass the most conservative
talmudists. He has nevertheless called the question of date to everyone's
attention, and this is all to the good. The burden of proof in Jewish studies
very badly needed to be shifted from those who doubt antiquity to those who
assert it, at least long enough to make clear how much
unconscious retrojection there has been." [X03:JLFJM:243f;
Note: this is in
direct contradiction to Richard's 'innocent until proven guilty' principle!
Sanders here agrees with Neusner's principle of "if we cannot show it, we
cannot know it"]

7."…but I agree that one does not find [in the Mishnah] the body of civil
law which one would expect if the Pharisees had their own courts and had to
pass judgment on numerous issues,or if they disagreed with common law as enforced by the magistrates. The
common notion, that they governed Palestine indirectly, told the priests what
to do, and served as the legal
experts for the populace on all and sundry issues is not support by the legal corpus." [X03:JLFJM:245; Note: it simply was not the law code…]

8."The Mishnah tractate Sanhedrin, which deals with courts and
offences, especially those for which the Bible prescribes death, is remarkably
lenient. According to its rules, it is most
unlikely that anyone could be executed. Not only does it require
more elaborate procedures before declaring for guilt than for innocence; not
only does it state that the court may reverse itself in favour of acquittal but
not in favour of guilt; not only does divided testimony lead to acquittal: the
tractate also requires judges to ask witnesses whether or not they warned the
accused in advance (5.1). Sanhedrin and the following tractate, Makkot
('stripes'), which discusses cases for which the penalty was thirty-nine
lashes, contain so many rules requiring
accusations to be thrown out of court that it is difficult to imagine a
conviction…Some of the rules for the definition of crimes and for
the modes of execution may go back to actual court practices in the Hasmonean
period [ended 63 bc]but the courts of Mishnah Sanhedrin are to a
considerable degree fantasy courts. The Great Sanhedrin is said to consist of sages, and the high priest is
notable by his absence. In the
world of the Mishnah, 'the king can neither judge nor be judged' (Sanhedrin
2.2), and courts of twenty-three try wild animals (1.4). Its authors
considered that a court of seventy-one must declare war (1 .4). This is not the real
world, in which Alexander Jannaeus, Herod and other kings
executed whom they would and waged war when they would. Nor does the tractate reflect the world
of the high priests Caiaphas and Ananusboth of whom arranged for executions without
consulting the laws that are now in the Mishnah. Only occasionally does the
real world penetrate the discussion. The rabbis first
describe how people are executed by burning: the convicted are choked until
they open their mouths and then are 'burnt' by forcing a flaming wick down
their throats. There follows a comment by R. Eliezer b. Zadok: once a priest's
daughter who committed adultery was burnt at the stake. 'They said to him: Because
the court at that time had not right knowledge' (7.2). 'The court at that time' was probably a real court…The
fantasy of the Mishnah, however,
mostly points in one direction: leniency. This fundamental element
characterized the rabbis' Pharisaic predecessors." [JPB:420; Note again that the data of OUR section of
the Mishnah contradicts what we know of praxis (e.g., king not being able to
judge) and represents instead a 'fantasy'. ]

9."Someone will say to me that the Mishnah
states that the Great Sanhedrin tried capital cases; therefore it did. My reply is that numerous rules in Sanhedrin did not
govern real life, such as the rule that kings cold not judge…Josephus offers an extremely large number of
individual narratives [of criminal and capital legal proceedings] ,
taken from different sources, and not one of them support either the theory of
Sanhedrin-control or Pharisaic-control. " [JPB:489,490; 'control' data in Josephus does not
support the Mishnah's 'reality']

10."The Mishnah has theories, idealistic and
unrealistic as they are, but still only theories about how
cases were decided and sentences executed." [JPB:481]

11."Besides the fact that the rabbis
did not dictate practice, rabbinic legal
discussions are sometimes idealistic, referring to the way things should be
done, not describing how they were done. This too requires that the
material be used with caution. Idealism marks
all the sources, not just rabbinic literature. Josephus' discussions of the law
of Moses, for example, are not necessarily descriptions of what his
contemporaries did. His narrative of events, however, gives us some
control. The Mishnah contains very little narrative, but what there is makes
the idealization of the more theoretical discussions stand out by contrast.
Further, only the Mishnah discusses an entire
ideal world in the present tense, a world in which God's will is
revealed through prophets, and the Urim. and Thummim on the high priest's
vestments still give oracular advice (Shevuot
2.2; cf, Sanhedrin 11.5f). Other parts of the Mishnah, however, do seem to
reflect current practice, and I shall attempt to derive some of the details of
sacrifice from the tractates Tamid
and Yoma." [JPB:11; Note--it describes an 'ideal' world, not the real one of
the past or present]

12."See the provocative lecture by
Wacholder, 'Messianism and Mishnah'. He gives numerous instances in which the Mishnah's rules, especially about the
temple, 'refer primarily to a Halakhah of the First
Temple which will be reinstituted in the Third Temple. These
references to the Sanctuary do not
necessarily embrace the Second Temple.' (p.23)" [JPB:496, note 13; Note--even when it seems to describe
actual law, it doesn't necessarily apply to the time of Jesus anyway.]

D. And just to close with another quote from Neusner, pointing to the 'constructed' and
'invented' world of the Mishnah:

"The character and interests of the Division of Damages present
probative evidence of the larger program of the philosophers of the Mishnah. Their intention is to create
nothing less than a full-scale Israelite government, subject to the administration
of sages. This government is fully supplied with a constitution and bylaws
(Sanhedrin, Makkot). It makes provision for a court system and procedures
(Shebuot, Sanhedrin, Makkot), as well as a full set of laws governing civil
society (Baba Qamma, Baba Mesia, Baba Batra) and criminal justice (Sanhedrin,
Makkot). This government, moreover, mediates between its own community and the
outside ("pagan") world. Through its system of laws it expresses its
judgment of the others and at the same time defines, protects, and defends its
own society and social frontiers (Abodah Zarah). It even makes provision for
procedures of remission, to expiate its own errors (Horayot)…The (then
nonexistent) Israelite government imagined by the second century philosophers
centers upon the (then nonexistent) Temple, and the (then forbidden) city,
Jerusalem…And the Mishnah is above all an act
of imagination in defiance of reality…The plan for the government involves a clear-cut philosophy of
society…" [X03:JLFJM2:42f]

The genre of most of the
rabbinic literature, thus, falls outside the normal understanding of law codes
or legal description. So, Sanders, in JPB:471f:

"Once this simple fact
is accepted, the genre of early rabbinic legal material becomes clear. It
does not consist of set rules that governed society. It consists of debates. In the period of our study, a local
Pharisee or group of Pharisees may have made a rule that people accepted. It is
not inconceivable that a large landowner, who owned property in both Jewish
Palestine and Syria, would have asked a nearby Pharisee what temple dues he
owed. We must remember, however, that there was a competing group of teachers,
the priests, and on matters such as tithes and purity most people would have
followed priestly law, though if a Pharisee offered a more lenient rule some
farmers might have been willing to cite it in their favour. But if anybody
could enforce tithes, it was the
priests, and only they had any say over general
rules of purification before worshipping in the temple. The Pharisees had
views, lots and lots of views. As many views on some points as there were
Pharisees. They could follow their own views on most issues, since few of their
special topics applied to areas of fife beyond individual control. Saying that
people generally did what 'the sages had laid down' corresponds neither to the
social realities of pre-70 Jewish Palestine nor to the nature of rabbinic
literature...To conclude: the Pharisees did not govern Jewish Palestine. They
debated rules and they had opinions. Some Pharisee or Pharisees may have
influenced the practice of one or many people on one or more points. The
priests and Levites influenced far more, the Essenes fewer."

[It should also be noted that
not only does the Mishnah itself manifest this debate character, but some have
also seen the Tosefta as an 'expression of discontent' with the Mishnah.
"However, at the same time, one could say that the Tosefta is the
Mishnah's opponent, if indeed it was the product of discontent. This is the
twofold character of the Tosefta: sometimes it is helpful, at other times it is
critical…The main purpose of the toseftan material seems sometimes to be
correction of the mishnaic rendering…", Alberdina Houtman, Mishnah and Tosefta: A Synoptic Comparison of the
Tractates Berakhot and Shebiit. Mohr/Siebeck:1996, p.235]

The data above applies to the
Mishnah as a whole, with special focus on its "legal traditions", but
we can actually zero in on the "capital
court" institution and see that the material about it seems to
be retro-fantasized as well. Consider
this extended argument by Lightstone [HI:MSFERG:72-74]:

"Mishnah Sanhedrin 2: 1 ff and the
correlative pericopes at Tosefta Sanhedrin
8: 1, both of which in their current versions
stem from late second and early third centuries, provide an apt
example of the phenomenon described. The two pericopes document successive stages in the projection upon the earliest rabbinism of a unified, institutionalized rabbinic
body. The passages are all the more interesting because that
projection operates at the implicit level; a set of assumptions appears to have
informed the editorial processes that gave the pericopes their final forms. Mishnah Sanhedrin 4:3-4a purports to
provide a description of the Great or the Lesser Sanhedrin in pre-70 Palestine.
As is the case with much of
Mishnah's pericopes dealing with the world of the Temple cult and Temple-based
government, m. Sanh. 4:3-4a would
be more safely regarded as an ideal reconstruction. Already in the Mishnah text, however, the description
of the Great Sanhedrin is rabbinized.

A.1.The Sanhedrin was [arranged] as a semi-circle
[the size of half of] a threshing floor,

A.2.so that they [the members] may see one
another.

B.And two scribes of the judges stand
before them, and write the laudatory evidence and the condemning evidence.

C. 1.Rabbi Judah says, three [scribes]:

C. 1.1.one writes the laudatory evidence,

C. 1.2.and one writes the condemning evidence,

C. 1.3.and the third writes the laudatory evidence
and the condemning evidence.

D.And three rows
of the disciples of the sages sit before them.

E.Each and every one [of the
disciples] knows his place (in the seating order].

[Mishnah Sanhedrin 4:3-4a]

"The
pericope is currently cast as a narrative. In reality, the form is typically
mishnaic; its narrative elements remain superficial. The mere substitution at
A. 1 of a participle for the verb "to be" in the perfect tense
transforms the whole into language and form typical ofthe greater part of Mishnah at its general,
penultimate level of redaction. Thus A is an anonymous law, followed by a
mishnaic dispute at B-C dependent upon A for intelligibility. D proffers
another anonymous law, similarly dependent upon A. I stress the superficiality of the narrative characteristics
for obvious reasons. The whole from a stylistic standpoint is part and parcel
of Mishnah's general literary framework (and no doubt purpose), and, therefore,
prima facie cannot be separated
from the late second-century context of Mishnah's penultimate redactors.

"As to
the pericope's substance, D is most enlightening for our purpose. For until D we have only Mishnah's ideal formulation
of a non or pre-rabbinic Israelite legislative and judicial body. No
rabbinic title or office appears in A-C. The terms, "scribes of the
judges" in B has no rabbinic ring to it. D,
however, rabbinizes the whole, by introducing the disciples of the sages, a
standard rabbinic title. D, then, would have us view the members of the Sanhedrin as
sages, that is, rabbis. By implication, the permanent presence of
the disciples of the sages also turns the idealized institution of A into an
institution of learning (or of training) as well as a judiciary or legislative
body, as is established by the context. Here then in a pericope of late
second-century formulation is evidence that rabbinism had begun to see an
authoritative council constituted of rabbis and rabbis-in-training as a
principle institution of Israel in which were merged legislative, judicial, and
educational mandates. This view of matters they projected
backward into the period before 70CE.

"Viewing
Mishnah Sanhedrin in this light
makes the glosses provided by the editors of Tosefta all the more understandable. For they take still further the Tendenzen of the Mishnah's editor. In the
passage which follows, direct citations of the Mishnah appear in boldface.

A. IThe
Sanhedrin was [arranged] as a semi-circle [the size of half of] a threshing
floor,

A.2.so that they [the members] may see one
another.

B. 1.The nasi sits in the middle [position on
the circumference],

B.2.and [the] elders sit to his right and
to his left.

C.Said
Rabbi Eleazar b. Rabbi Sadoq, "When Rabban Gamaliel sat at Yavneh, [my]
father sat to his right and [the] elders to his left.

D. 1.And why did one aged-man sit to his
right?

D.2.because
of the honour due an aged-man.

E. 1.Three
rows of the disciples of the sages sit before them,

E.2.the greatest in the first, the second
ranked in the second, and the third ranked in the third.

[Tosefta Sanhedrin 8: 1; see also parallel,
Yerushalmi Sanhedrin 1:4]

"The
(apparent) gloss at C of the Mishnah citation (at A) functions to make explicit
the rabbinic constitution of the Sanhedrin. In addition, in its present context
C represents the organization of the sages at
Yavneh in the decades following the events of 70CE as in continuity
with the institutions of governance before the destruction. The sages, now clearly under the presidency of the rabbinic nasi (Gamaliel
II) are portrayed as functioning at Yavneh in the same manner and capacity as
their predecessors of the earlier period.

"It
is, however, only by appending C to A and B that the toseftan editors achieve
this effect. C, however, does not depend in literary terms on A-B. C in no
significant manner reflects the language of A. Only the reference to elders
finds a counterpart in B--hardly enough to show literary dependency, as opposed
to editorial refinement. D glosses and does depend upon C; "elder" at
D must mean ,'more aged" and does not designate an office, as is the case
in B. In all, C (with or without the further explanatory gloss of D) is
intelligible on its own. As such there is no reason to suppose that it
originally glossed either our Mishnah passage, that it refers to the Sanhedrin,
rabbinized or not, or that it relates to any other formal, institutionalized
council or academy. C, viewed as a tradition independent of the current
context, merely offers an attributed narrative as precedent for a simple
protocol, custom or etiquette (made explicit at D), which dictates that the
place of honour in a seating arrangement belongs to the older person. It is, then, via the editorial processes of early
third-century rabbinic circles that an early rabbinic Sanhedrin/academy ruled
by a rabbi-patriarch appears before us.

"The toseftan and
mishnaic passages just analyzed provide just two examples of how late second- or third-century editors shape or
reshape their materials in a manner that implies or assumes the prior existence of an institutionwhich the texts upon closer analysisbelie.
As one peruses, however, still later sources dealing with rabbinic organization
in the late first and second centuries, the explicit portrayals of a
Sanhedrin/academy led by the become commonplace, as we noted." [HI:MSFERG:72-74]

"Our analysis of two
interdependent pericopae suffices to lend credence to the notion that rabbinism
was not organized about a central Sanhedrin/academy under patriarchal rule
before the latter decades of the second century. Moreover, that redactors of
the late second and early third centuries reshape materials in a manner that
projects such an institution back onto an earlier period suggest that such an
institution accords with their contemporary state of affairs." [HI:MSFERG:74]

BTW, he goes on to point out that the authority of
these early 'Sages' is not at all supported by the archeological remains:

"Has, then, the
power and authority, or the prestige of members of the rabbinic guild, a
Patriarch-sanctioned retainer class, registered on the material evidence for Roman Palestine, in
particular in the Galilee? The short answer is, apparently not. The salient points are simple…The basic
architecture of synagogues for the late second through fifth centuries does not
accord with rabbinic texts…The art found in Late Roman and Byzantine Galilean
synagogues does not accord with even the most stalwart attempts to interpret
Palestinian rabbinic sources so as to render them more lenient, and hence more
consistent with the material evidence." [HI:MSFERG:193ff]

Richard notes correctly
(IMO) that it is generally believed that Jewish law was allowed and enforced by
Roman rule at this time, but scholars in the history of Jewish law make a distinction betweencivil/private
law, and criminal/public
law. And, whereas
there seems to be consensus on Jewish jurisdiction over civil matters, this
consensus is lacking in criminal law--the area we are discussing here:

"In this chapter we shall discuss the extent to which the Roman
authorities (who conquered all the Mediterranean lands, including Palestine
known to the Jews as Erets Yisrael,
'the Land of Israel') permitted the Jews to keep their own civil
law as the binding law in their relations amongst themselves. From the
perspective of the Roman sources, it is a question of jurisdiction.

"The problem of jurisdiction is a particularly complex one; its
difficulties vary according to the different sources and the different periods.
There is a distinction between the problems of civiljurisdiction
- which deals with private law
(e.g., family law, contract law or property law) - and those of public jurisdiction
which includes criminal law. Moreover, what were the characteristics
of the court which exercised jurisdiction over Jews in civil and criminal
matters? Was it a Jewish court or a Roman court? Did Jewish courts and Roman
courts have any kind of contact with one another? According to which legal
system were the Jews judged? Other questions concerning this issue emerge: did
Roman law give the Jews the right to hold their own courts with legal authority
to judge matters between Jews? Could these Jewish courts give judgments which
would be recognized by the Roman Government as judgments that could turn into a
res iudicata, so that these cases
would not be brought again before a Roman court? Were the judgments of the
Jewish courts executable and who was to implement them -- the Jewish
authorities or the Roman authorities…Roman
provincial governors also had in theory authority to involve themselves in civil
judgments; however, following the custom of Rome, they preferred, in this
period, not to intervene. There was, however, no universal practice in such
matters throughout the Empire. Yet even after Judea became a Roman provincia, the governor maintained the
principle of leaving civil justice to the local Jewish institutions. Rome
defined autonomy as the right to live according to independent laws (suae leges),'autonomy in the broad sense of independent civil justice'.

"I believe that Judaea was among those states that had their own
law restored to them - leges suas reddere.The residents had the status of foreigners
enjoying their own law (peregrini qui suis
legibus utuntur), and thus living 'in accordance with local law' (secundum propriae civitatis iura). Thus
it is possible to establish that Jewish courts in Palestine were able to judge
conflicts between Jews, just as in other places conflicts between local
residents were decided by local courts or by iudex
peregrinus.

"As for criminal
law, we
cannot be certain as to the limits which Rome placed on the competence of
Jewish courts to enjoy jurisdictional autonomy... One special
problem relates to the capital punishment of a stranger who entered the Temple
of Jerusalem. Jean Juster believed that the Sanhedrin had the authority, with
the backing of the Roman law, to execute every stranger (even if he were a
Roman citizen) who had entered the forbidden grounds of the Temple. His belief
was based on a dubious paragraph in Josephus'
War, 6,2,4, which stands in
contradiction to other sources. There is no other source, either
Jewish or Roman, that can verify the assumption that the Roman administration
recognized the Sanhedrin's power to pronounce death verdicts on Roman citizens.
In fact, the 'capital punishment' here may
well be extra-judicial, a form of popular justice (or self-help) rather than an
act of government or the judicial system. [HI:IHSJL:141f,144]

This raises an interesting epistemic problem, relative to sources:

1. We do not know from the
extra-biblical sources whether the Jewish courts could actually/ legally trycriminal cases.

2.
We believe that Jewish civil law was enforced in this time, but we don't really
know much about the content of that civil law (due to the problems in the
rabbinic material).

This basically entails that
we cannot extrapolate from Jewish jurisdiction in civil law (protected under
Roman decrees, such as that of Augustus) to their jurisdiction in criminal law
(especially in light of the
practice of the Romans to reserve capital cases for themselves).

Now, these
conclusions and observations by scholars in that field argue strongly that the rabbinic
'legal' material cannot be
assumed to apply to the real world at all, much less the real world of
Jesus' day. In fact, reservations are specifically
in order about the court/capital crime proceedings in Sanhedrin!

I am forced to
conclude, therefore, that it is altogether unwarranted to say that (a) the Mishnah
represented the Roman-approved Jewish law of the period; or (b) that it
represented pre-Roman Jewish law which had passed into the status of 'moral custom'
by that time. And since we have already seen the data about the surprising
'volatility' of Jewish burial customs in that period, then Neusner's and
Sanders's statement that the burden of proof has shifted to those asserting the
antiquity/applicability of Mishnaic law (not to mention, Talmudic!) applies in
this case. Richard will simply have to do more to convince us that (a) there
was a Mishnaic court of Rabbi's who judged capital crimes at the time of Jesus;
(b) that there really were separate graveyards for the various categories of
capital executions(!); (c) that any
of the laws he uses were 'real' at the time of Jesus; and (d) that all of them actually applied to the case
of Jesus. Failing this, we cannot grant that Richard has moved beyond 'physical
possibility' to 'historical possibility/plausibility' with his
argument--largely because his sources are irrelevant to the discussion.

We could stop
here, of course, but we can actually go further and examine more of his
argument for plausibility.

We should also
note that some of our discussion below isabout legal
customs (e.g., burial of executed criminals) and not just burial customs per se
(e.g., temporary burial). Legal customs can change dramatically, as with the
Jewish Revolt, for example.

[I also do not
mean to suggest that McCane is 'uncritical' in his use of the rabbinics to his
discussion! (My article is NOT about McCane's work, but about whether the body
of Jesus was moved from the tomb
because of some burial practices of the first century. McCane argues that the
tomb of J of A was a criminal
tomb, and therefore there was no need to move the body anyway--contra Richard's
article.) I too will be using rabbinical material below, but, like McCane
suggests, I will need to consider it on a case-by-case basis.]

Practically
speaking, though, I will be answering these rabbinically-based
positions with a rabbinically-based
defense. That way, if my defense 'fails' due to rabbinix-issues, so too will
the original objection/position likely fall--for
the same reason.

………………………………………………………………………………………………………………..

Secondly/additionally, we have to also recognize that scholars
are not at all unified in their consensus that Jewish criminal law (whatever it was at the
time) applied to the execution/burial of Jesus.

I cite just
two respected sources:

"The accounts are not necessarily contradictory as far as
historical events are concerned. It is possible that Mark, Luke and John no less
than Matthew are thinking of Joseph's family grave; and there are other ways of
reconciling the facts related by the evangelists. (Incidentally, as Jesus was executed by the Romans, it is doubtful
whether, under the Jewish law of the time, he ought to have been buried in a
plot for criminals. The question is complicated by his having been
found guilty of blasphemy by the Sanhedrin.)" (David Daube, [Daube:311])

"Yet even
those who are able to believe that a real trial occurred are compelled to admit
that when the chief priests transferred the
case from their court to Pontius Pilate's tribunal, they did not ask
for their findings to be confirmed, but laid
a fresh charge before the prefect of Judea, namely that Jesus was a political
agitator with pretensions to being the king of the Jews. It was not on a Jewish religious indictment, but on a secular
accusation that he was condemned by the emperor's delegate to die
shamefully on the Roman cross." (Geza Vermes, [JJ:36f])

These are
respected Christian and Jewish scholars, who have labored in this field with
great success.

So, although
many of the Christian commentators will refer to the criminal's graveyard
(without indicating why they
accept that position), it is not at all clear
from the data that this was the expected course of events.

………………………………………………………………………………………………………………..

Third,there really is no 'time problem' here, that would
necessitate a 'stop over' at the garden tomb, to begin with.

There are two major elements involved in
showing this: (1) the 'ease' of doing the burial before sundown; and (2) the
lower-than-assumed restrictions of the sabbath.

1. The ease of doing a regular burial before
the Sabbath.

This can be
demonstrated by simply looking at what was done in a simple, primary
(non-funeral) burial, and then comparing these tasks to the time frames and
burial infrastructure of the day. [Richard's article points out that the
rabbinic position is that the executed criminal would have a burial, but not an honorableone.
Therefore, we first have to determine what set of events would occur in each
type--honorable burial and dishonorable burial.

·The number of tasks to accomplish for a
'regular' burial (if elaborate mourning was not required, and large crowds were
not expected) was not that great:

"In fact, the practice of both primary (tanknote: at
time of death) and secondary burial (tanknote: after decomposition of the body,
normally a year later) in this period is well attested (Rahmani; Meyers;
Hachlili) and can be set within the context of what little we know of first-century Jewish burial customs. When death occurred the eyes of the deceased were
closed, the mouth bound up, the corpse washed (cf. Gos. Pet. 6:24) and anointed
(m. Sanh. 13:5)—perhaps both at the place of death (cf. Jn 19:40) or
at the home of the deceased and again at the tomb (cf. Mk 16:1). The warm
climate dictated a speedy burial, with the use
of spices necessary to counter the stench of decomposition. For the same reason the body might be laid on sand or
salt. The deceased were buried in their own clothes or in specially
prepared wraps (cf. Mk 15:46; Jn 19:40; Gos. Pet. 6:24). Coffins were used in
some cases (cf. Lk 7:14), though it is unclear whether their usage was normal
in Jerusalem. When the body was in place, the tomb was closed off by a large
rock, held in place by a smaller stone. After
a twelve-month period of decomposition, the bones were collected and placed in
an ossuary. The purpose of this secondary burial seems to have been
both psycho-social and theological: to help complete the work of mourning by
extending that work to twelve months; and to assure the sinlessness of the
deceased by means of the expiation accorded the process of decomposition
(Rahmani; Meyers, 91–92)." [NT:DictJG, s.v. "Burial of
Jesus"]

"Jews
of the NT period buried their dead promptly, as soon as possible after death
and almost always on the same day. Preparations began at the moment of death: the eyes of
the deceased were closed, the corpse was washed with perfumes and ointments
(Acts 9:37), its bodily orifices were stopped and strips of cloth were wound
tightly around the body— binding the jaw closed, the feet together and the
hands to the sides of the body (Jn 11:44). The corpse was then
placed on a bier and carried in a procession to the family tomb (Lk 7:12).
Eulogies were spoken, and the corpse was placed inside the tomb, along with items
of jewelry or other personal effects. The funeral was thus conducted without
delay, and most bodies were interred by sunset on the day of death. But Jewish
burial rituals did not conclude with this first, or primary, burial. A year after the death, members of the
immediate family returned to the tomb
for a private ceremony in which the bones
were reburied after the body had decayed." [HI:DictNTB, s.v.
"Burial Practices, Jewish"]

"Those responsible would wash the body (Acts 9:37), anoint
it with aromatic ointments (Jn. 12:7; 19:39), clothe
it as in life (cf. 1 S. 28:14), swathe hands
and feet in gravebands, usually of linen (Sir. 38:16; Jn. 11:44a),
and cover the face or bind it about with a
napkin or handkerchief (Jn. 11:44b). Such ministries ordinarily
devolved upon loving relatives and friends, mostly women (cf. Lk.
23:54–24:1)." [ISBE, s.v. 'burial']

·Most tombs were to the north and
northwest of the city (Herod's was an exception, as were those elite tombs in
the Kidron valley, associated with famous OT figures, and the High Priest's
family). Presumably, the 'graveyards of the condemned' would have been with the
other cemetery sites in the northern necropolis or in the same southern area in
which the Potter's Field was located. So, the only movement of the body would
have either been from the Cross to the (biblical account) Tomb of Joseph of A
(traditional map sites yield a distance of only 50 yards); or from the Cross to
the northern necropolis (300-600 yards?); or with the farthest plausible distance to the
vicinity of the Haceldama--"Field of Blood" area--around a mile [at 3
mph, that's a 20 minute walk for a worst-case scenario] . So the distance to an
alleged community/criminal gravesite would not be a factor.

·The few'heavy tasks' (e.g., carrying the 75lbs of spices of Nicodemus, carrying
the physical body of Jesus) would likely have been done either by their servants (they both are represented as
wealthy, and Nicodemus is generally considered to be of the rich Ben Gurion
family) or by the professional,
contract-labor burial tradesmen, common in the day.

"In
addition to (commercial) gravediggers, there
were buriers, bone collectors, professional mourners, and flute players…The
sources indicate that these contracted
laborers were independent workers employed by anyone in need of their services.
One may assume they were part of a larger organization which supplied funerary
services…Those who could not pay funerary expenses received aid from havurot, 'societies' which functioned on a
voluntary basis, similar to the societies in Jerusalem prior to the
destruction of the Second Temple…The case of a gentile who buried a
Jew on the eve of the Sabbath indicates that, when necessary, Jews could use
non-Jewish burial societies for the burial of Jews. It is
possible that in mixed cities of that period, non-Jewish buriers worked with
the Jewish charitable burial societies...The gravediggers,
buriers, and all those who took part in funerary services worked independently
of any urban institution or administrative office of the Jewish community. Family members of the deceased used their services to
hew caves, purchase entire caves
or single burial plots in a burial cave, conduct funeral services, and bury the
dead. Even if these workers were affiliated to an organization
similar to today's hevra' qadisha'
or were members of a guild, they still had no official connection to any urban
institution. One may assume that, once granted permission by the local
authorities, they were free to hew tombs and sell them. Moreover, the familial
obligation to bury its deceased members, and the "good deeds"
performed by others in this regard, were not connected in any way to the
charitable functions of the synagogues…The existence of private burial societies relieved the
general urban as well as Jewish communal institutions from all matters
concerning burial." [GLA:363ff]

[These organizations were likely under contract to the Jewish rulers,
for dealing with "unclaimed" execution victims. John 19:31 has the
Jewish leadership ask Pilate to prematurely end the crucifixions, and take the
bodies down. Since this request was for reasons of the Festival, some
arrangements must have been 'standing orders' for such situations. According to
Semahot 2.9, the other
crucifixion victims should have been given full, honorable burials--they do not
seem to have been 'condemned' by the Sanhedrin at all, nor are they mentioned
by Joseph of A.]

·The time frame available for all this is
from approximately 3:00 pm until 'deep' sundown-plus in April (somewhere
between 6.15pm and 7:15pm). That gives a spread of 3-4 hours, with the largest
time component probably being the request by Joseph to Pilate for the body. The
indications are that he went quickly (although we do not know where Pilate was at the time: he might
have been at/close to the site, overseeing the event--the interchange with the
Jews in John 19.19-22 seems to place Pilate at or close to the site):

"The
remark in Mark suggest that Joseph went to Pilate almost immediately after
Jesus' death, since Pilate is not sure that Jesus is dead yet. Matthew and Mark
noted earlier that it was becoming evening (probably somewhere between 3:00 and
5:00 P.M.), which meant that Sabbath was approaching, so the body had to be
dealt with quickly or else left until Sunday." [Bock, Luke, at loc.]

Pilate also had an inscription written and
put on the cross. It read, “Jesus of Nazareth, the King of the Jews.” Many of the Jews read this inscription, because the
place where Jesus was crucified was near the city; and it was
written in Hebrew, in Latin, and in Greek. Then
the chief priests of the Jews said to Pilate, “Do not write, ‘The
King of the Jews,’ but, ‘This man said, I am King of the Jews.’ ” Pilate
answered, “What I have written I have written.” (John 19.19ff)

·Even working alone, Joseph and Nicodemus
(perhaps with their servants) could have done this in two hours:

"The
actions now about to be described (going before Pilate who would call in the
centurion, buying the linen cloth, taking the body down, tying it up, and
putting it in a burial place) would have taken
not much less than two hours." [DM:1211f;
but notice that if Pilate were on-site, or if the centurion accompanied Joseph
when he went to ask for the body, then this time is further reduced…and of
course, with a burial 'firm' involved, this entire process could have happened
in under 30 minutes, easily.]

It
should also be noted though, that John indicates that Jesus' mother was present
at the Cross [Jn 19.25ff], and she could easily have been a member of the
burial party (even though she is not mentioned as such--John might have simply
taken her home with him, after knowing that Joseph of A was taking care of the
burial).

·The large, royal-size amount of spices
would not have been all used in the wrapping of the body; most would likely
have been used as a 'bed' (like sand was used in common graves). The amount is
substantial (commentators call it a 'royal' amount), but not impractical: if
the spices were oils, they would be between 10-15 gallons; if dry powder (most
likely, according to Brown), it would be the volume of 15-20 sacks of sugar or
flour (this would fit in a medium-sized gym bag today). There is no need to
assume that the body was 'smothered' in these ingredients. Some oils were
needed for the cleaning process ("Shab 23:5 and early citations of Sm
indicate that the corpse was 'anointed and washed,' i.e. it was first smeared with oil to remove the dirt
and then washed to cleanse it of the oil." [HI:Sema:98.n3])
and some would likely have been burned by Nicodemus in 'royal tribute', as was
done in Jeremiah 34.5 ("you shall die in peace. And as spices were burned for your ancestors, the earlier kings
who preceded you, so they shall burn spices
for you and lament for you, saying, “Alas, lord!”").

"The
amount of spices that he is reported to have brought appears to us staggering
in quantity. One hundred livtrai
is the equivalent of 65.45 pounds (hence the neb
rendering, “more than half a hundredweight,” the latter being a British measure
of 112 pounds). Lagrange thought that an error must have arisen in the tradition
and that the original quantity will have been much less (503), while Dodd
thought it “an extravagant touch introduced by the Evangelist” (Historical Tradition, 139 n.2). There is
no need for such suggestions. The family of Nicodemus appears to have been
enormously wealthy, and the bringing of huge amounts of spices at royal
funerals was familiar to Jews. It is related in 2 Chron 16:14 that when King
Asa was buried he was “laid on a bier which had been heaped with all kinds of
spices skillfully compounded; and they kindled a great fire in his honor.” That
was eclipsed in the funeral of Herod the Great; according to Josephus (Ant.17.199) five hundred slaves bore
spices in the funeral procession as they followed the army to the king’s burial
place. More closely related is the action of
the proselyte Onkelos, who is recorded as having burned eighty pounds of spices
at the death of Gamaliel the elder. When asked why he had done so,
he replied, citing the words of Jeremiah to Zedekiah, king of Judah: “You shall
die in peace, and with the burnings of your fathers (the former kings) who were
before you. Is not R. Gamaliel far better than a hundred kings?” (Str-B, 2:584.
The incident is dated ca. a.d. 40–50). One may imagine
the Teacher of Israel, a contemporary of Onkelos, echoing, “Is not Jesus far
greater than all other kings?” The Evangelist thus continues the theme of the
kingship of Jesus into the account of his burial." [WBC, at John 19.38ff]

·I
should also point out that a Sabbath eve
twilight burial is not at all uncommon in the Rabbinic literature.
There are several references which seem to indicate (a) they were common; and
(b) there was enough time to get them done without a problem:

·"In [the case of] a town which is
near a graveyard [and the dead] was brought [to burial] at twilight. (note 20)"[Soncino Notes:" (note 20).Of the
Sabbath eve. In such
a case the ceremonial would be performed on the Sabbath. Though the night
forms, for general purposes, the beginning of the following day, in respect of
the mourning on the first day of the death an exception is made, and the night
is held to follow the previous day. Sabbath eve can accordingly be regarded for
the purpose as Friday. viz., the first day of the burial." (B. Baba Bathra 100b)]

·"For all other dead, he should
hasten the burial and not make the funeral elaborate…In an emergency, however,
or on Sabbath Eve, or if rain is
coming down on the bier, he should hasten the burial and not prolong the
funeral." [Semahot
IX.9]

·"'At twilight on Sabbath eve,'…Although
a funeral might be rushed through at this time, and the day still counted in
the sibah…"[HI:Sema:157, note 18]

·[In the May 2002 revision of his article,
Richard makes a very odd argument from Midrash Rabbath:

"This
[his supposition that Jesus was not formally buried on Friday night] is
supported by a similar case in the Midrash Rabbah, where David is said to wish that he would die the eve of
the Sabbath so his body would experience a final Sabbath before its burial on
Sunday (Eccl. [V:12 (148)]), which suggests it was common for those
dead just before sundown to await a later burial." (emphasis mine)

Apart from the
impossibly speculative conclusion ("which suggests it was
common..."!!!!) from ONE DATA POINT (as in N=1…smile), this is not only in
contradiction to the centuries-earlier rabbinic passages I cited immediately
above, but it also represents a misunderstanding
of the Midrash text itself. Here is the text from Soncino:

"He [God] told him [David], ' [You will die] on the Sabbath.’ He
spoke before Him, ‘Let me die on the first day of the week [Sunday].’ [Soncino footnote: 'So that his body could at once be
prepared for burial. This is prohibited on the Sabbath.'] He replied
to him, ‘Already has the time of the kingship of your son Solomon arrived, and
one reign may not overlap another even a hair's breadth.’ ' Then let me die on the eve of the Sabbath,’
he pleaded. He [God] replied, ‘For a day in
Thy courts is better than a thousand (Ps. LXXXIV, 11), i.e. better to Me [God] is one day in which you are engaged
in Torah before Me than a thousand sacrifices which your son Solomon
will offer before Me on the altar.’ David
used to sit and study every Sabbath throughout the day. He had a
garden at the rear of his house, and on that day [when he was to die] the Angel
of Death came and shook the trees. He went out to see what it was, but as he
ascended a step it broke under him, and he was silenced [in death]"

Notice that
David's motivation has nothing to
do with 'laying around dead/unburied on the Sabbath'--he is specifically
(according to Soncino) trying avoid this!
He is arguing for God to let him die at a
time when he CAN BE buried--the exact opposite
motivation imputed to him by Richard?! God says 'no, you
cannot die on the Eve, because I want you to study Torah on Sabbath--as is your
custom'. Richard has somehow misread this, or read something alien into it. This
passage actually SUPPORTS my position that
Sabbath Eve deaths resulted in immediate and full burials.]

2.
The restrictions to performing funerary procedures on the Sabbath is generally
grossly overstated--many of the standard Sabbath restrictions were relaxed for
weddings and funerals.

The data here
is quite consistent--at least if we believe the rabbinic literature:

The only task that seems 'problematic' for
doing on the Sabbath is POSSIBLY the actual
hauling of the body somewhere (and even there some uncertainty
exists in the sources--see below).

·"MISHNAH. ALL
THE REQUIREMENTS OF THE DEAD MAY BE DONE; HE MAY BE ANOINTED WITH OIL AND WASHED, PROVIDED THAT NO LIMB OF HIS IS
MOVED. THE PILLOW MAY BE REMOVED FROM UNDER
HIM, AND HE MAY BE PLACED ON SAND,
IN ORDER THAT HE MAY BE ABLE TO KEEP [from putrifying].1 THE JAW MAY BE TIED UP, NOT IN ORDER THAT
IT SHOULD CLOSE BUT THAT IT SHOULD NOT GO FURTHER [OPEN]" [B. Shab 23.5, Soncino]

·"Buying and
selling were forbidden on the Sabbath and on feast days, but exceptions were made for real needs, like a
death (Strack-Billerbeck 2:
812–34; b., Shabb. 151a; t., Shabb. 17.13; cf. John 13:29)."
ABD, s.v. "Last Supper"]

·"Come and hear: One
may go to the tehum (i.e., the limit of the Sabbath day's journey)
to await nightfall to attend to the affairs
of a bride and the business of a corpse. Thus, onlyfor
the affairs of a bride or a corpse,
but not for the business of any other. As for another [with a purpose]
analogous to [that of] a bride, it is well; the purpose in connection with a
corpse be? [Presumably] in order to bring a
coffin and shrouds; yet
he [the Tanna] specifies a corpse. but not another; yet why so: let us argue
that [it is permissible for another too], for if there were walls there he
might bring [articles even on the Sabbath]? — In the case of a corpse too, it
is conceivable where the purpose is to cut out shrouds for him…And one may go
to await nightfall in order to attend to the affairs of a bride or of a corpse,
to bring a coffin and shrouds for him. [b.
Shabb 150b, 151a]

·"In this hot climate under Jewish law the preliminary disposal of the body (including its
washing, also practiced by other peoples) took precedence over celebration of
the sabbath, even if the rest of the treatment of the body had to
wait. Burying the dead was an important duty of the pious in Judaism." [BBC, at Mat 27.57]

·"Because bodies decomposed rapidly, mourners were allowed to anoint, wash and wrap the
body in its shrouds even on the
sabbath. More elaborate
arrangements that these loyal women disciples wish to bestow on Jesus, however,
might wait until the sabbath (sundown Friday evening to sundown
Saturday evening) has passed." [BBC, at
Luke 23.54]

·"Our Rabbis taught: No less than
seven halts and sittings are to be arranged for the dead, corresponding to
Vanity of vanities. saith Koheleth; vanity of vanities, all is vanity. R. Aha
the son of Raba said to R. Ashi: What was their procedure? He replied unto him:
As it has been taught; R. Judah said, At first they provided in Judea no less
than seven halts and sittings for the dead in the [following] manner: [The
leader called out after the escort had sat down on the ground]. ‘Stand, dear
[friends], stand up’; [and after they had walked for some distance he again
called out]. ‘Sit down, dear [friends], sit down’. They said unto him: If so , such
[procedure] should be permitted on the Sabbath (note 15) also!…An objection was raised: [It
has been stated that] they said unto him, ‘If so, such [procedure] should be
permitted on the Sabbath also’. Now, if it is said [that the ceremonial is to
take place] in the graveyard and on the first day [only], [for] what [purpose]
is the graveyard required on the Sabbath? — In [the case of] a town which is
near a graveyard [and the dead] was brought [to burial] at twilight. (note 20)"[Soncino Notes:" (note 15) I.e., the Sabbath eve, if the burial took place near dusk. In such a
ceremonial no desecration of the Sabbath
could be involved. (note 20). Of the Sabbath eve. In such a case the
ceremonial would be performed on the Sabbath. Though the
night forms, for general purposes, the beginning of the following day, in
respect of the mourning on the first day of the death an exception is made, and
the night is held to follow the previous day. Sabbath eve can accordingly be
regarded for the purpose as Friday. viz., the first day of the burial." (B. Baba Bathra 100b);
TankNote--the
time period is actually 'defined away' to NOT be the Sabbath, in the case of
'late burials'!]

As I mentioned, there is even some
rabbinic disagreement on whether the 'hard work' of burial is forbidden or NOT
on Sabbath:

·For the digging of a grave/carrying the
body:

"THE LAWS CONCERNING THE SABBATH. But they are written [in
Scripture]! — No, it is necessary [to state this] for the teaching of R. Abba.
For R. Abba said: He who digs a hole on the Sabbath and requires it only for
the sake of its earth is not liable for it. According to which authority [will
this be]? According to R. Simeon, who said: one is not liable for work
[performed on the Sabbath] which is not required for itself." [Soncino
notes:"(note 31) — You may even say that it is
according to R. Judah: (note 32)
there one is improving, here one is spoiling." [Soncino Notes: "(31) E.g., a hole dug for the sake of its
earth. R. Simeon stated this principle in connection with carrying out the dead
on the Sabbath (v. Shab. 93a).(32)
Who holds that one may not carry a corpse out on the Sabbath for burial (v.
ibid.)." (b. Hag
10a)]

·For the carrying of a body:

"R. Simeon declared exempt even him who carries out a corpse for
burial"[b. Shabb
94a/b,Soncino].

What this means is that there is a great
deal more flexibility involved, than just the 'hard stop at astrophysical sundown view'
of the Sabbath might suggest. The only possibly time-constrained task would be
moving the body, and we have seen that the distance was no problem. And the
other in-tomb tasks (e.g., washing, wrapping, anointing) could have actually
gone on a little longer past 'legal sundown'. The scriptures, however, do
present the men (Joseph and Nicodemus) and the women (Mary et al) as attempting
to avoid exceptions in their Sabbath observance. [Of course, the non-Sanhedren
women might not have been as rabbinically-refined enough to understand their
'rights', hence their plan to return after the Sabbath…smile] Accordingly, the
men finished the burial, sealed the tomb with the rock (perhaps another task
for the contract labor), and went home to ponder these events…

3.
We might also note that Joseph of Arimathea would have not been in any
additional 'hurry' in this process, due to 'travel plans'. As a member of the
Sanhedrin, he was a resident of Jerusalem and did not have to 'return home'.
Plus, many, many pilgrims who came to Jerusalem for Passover stayed for the
entire feast season.

"Joseph of
Arimathea: (Mt.
27:57, 59; Mk. 15:43, 45; Lk. 23:50; Jn. 19:38). In all four Gospels the man
who steps forth to bury Jesus’ body is Joseph of Arimathea. As a member of the Sanhedrin, Joseph was undoubtedly a
resident of Jerusalem at this time, but he was born and had lived previously in
the Judean village of Arimathea. Joseph is described in both Mk.
15:43 and Lk. 23:50f as being a member of the
Sanhedrin, although he did not consent to their plot and action
against Jesus. He was a rich man (Mt. 27:57) with good social standing (Mk.
15:43). His wealth is shown by the fact that he possessed a new tomb freshly
cut out of stone. This undoubtedly indicates that he had made a permanent move
from Arimathea to Jerusalem and expected to use this new tomb for his family
burial plot in his new city. All four Gospels agree that
Joseph became a disciple of Jesus, although John emphasizes that this was done
secretly (Jn. 19:38). John seems to indicate that there were many such
disciples (12:42). Mk. 15:43 and Lk. 23:51 disclose that he was “expecting the
kingdom of God,” thus indicating that he expected the Kingdom to come through
Jesus. In addition, Luke stresses that he was a good and just man (Lk. 23:50).
His desire to bury the dead despite personal risk shows that he was a pious
Jew." [ISBE, s.v.
"Joseph of Arimethea"]

"The Greek text at Mark 15:43 and John
19:38 allows the interpretation that when Jesus’ crucifixion took place, Joseph
came directly “from Arimathea” to participate in the events surrounding it (if
the prepositional phrase modifies the verb of motion) or, more likely, that he was originally from the city of
Arimathea and presumably now living elsewhere, probably in Jerusalem
(if the prepositional phrase modifies the name Joseph). The textual variant in
Mark 15:43 and John 19:38, with the word the
before the prepositional phrase from
Arimathea (see NovTG) argues for the latter interpretation."
[ABD, s.v. "Joseph of Arimethea"]

Accordingly,
when you factor in the minimal tasks required, the availability/standard use of
contract labor, and the flexibility of the Sabbath 'boundary', the time urgency
problem goes away. To be sure, they probably hurried (perhaps even out of
anxiety over the Roman and Jewish leadership, who no doubt noticed them honor this 'criminal' Jesus), but there is
no reasonto believe, from the
parameters of the situation, that the time crunch was so urgent that Joseph had
to break Jewish ethics/mores and not
bury Jesus (i.e., just dump him in a cave for holding).

Next, let's talk about the 'temporary burial'
practice…

[Remember, though, that
those executed by the State--as in crucifixions by Roman authorities--were
supposedly allowed full honorable burial (according to Semahot 2.9: "No rites whatsoever
should be denied those who were executed by the state"). ]

Let's list the events in
sequence, from death forwards [note--you may have to print this table in Landscape
orientation, I do]:

Seq

Criminal

(Sanh. execution)

Single Tomb

Dual-tomb

Comments/Explanation

1.

Death

Death

Death

2.

rending of clothes,

baring of shoulder

rending of clothes, baring of shoulder

"We see from our text that although funeral rites were withheld
from them (i.e., suicides and executions),
they were never denied burial…'no rites'--i.e. rending of clothes, baring of
shoulders, and the eulogy, but he should not be denied proper shroud or burial."
[HI:Sema:100, II, Note 1]

3.

anoint/wash/bind/cover

(this could be done at step 5)

anoint/wash/bind/cover

(could be done at step 5)

"Shab 23:5 and early citations of Sm indicate that the corpse
was 'anointed and washed,' i.e. it was
first smeared with oil to remove the dirt and then washed to cleanse it of
the oil." [HI:Sema:98.n3]….

"Preparations began at the moment of death: the eyes of the
deceased were closed, the corpse was washed
with perfumes and ointments (Acts 9:37), its bodily orifices were
stopped and strips of cloth were wound
tightly around the body— binding the jaw closed, the feet together
and the hands to the sides of the body (Jn 11:44)." [HI:DictNTB, s.v. "Burial Practices,
Jewish"]

"The dead were sometimes
interred in a temporary grave, a fosse , where the flesh disintegrated),
and from which the bones were then gathered
into small caskets, ossuaries or ostophagi, for final burial. The Rabbis refer to this bone gathering practice as
"ossilegium", not to
be confused with either burial in a temporary tomb, in which case
the corpse apparently remained intact…" [HI:Sema:158,
note XII.1]

6.

wash/anoint, add shroud

add additional effects, additional wash/anoint, add shroud

add additional effects, additional wash/anoint, add shroud

"We learn from out
text (Sm) that effects were sometimes cast on the coffin." [HI:Sema:25]

7.

Burning of spices

Burning of spices

"Additional rites included “a
great burning” (2 Ch. 16:14; 21:19–20; Jer. 36:5), i.e., of spice and incense, not of the
corpse." [ISBE]

8.

Burial of the "Hanging-post"

(see Note 1 below)

"Our Rabbis taught: [Then thou shalt hang him on] a tree: this I
might understand as meaning either a cut or a growing tree; therefore
Scripture states, Thou shalt surely bury him (note 6) [thus, it must be] one that needs only burial, so
excluding that which needs both felling and burial. R. Jose said; [It must
be] one that needs only burial, thus excluding that which requires both
detaching and burial. And the Rabbis? — Detaching is of no consequence."
[Soncino notes: "(6) The need of burial for the post is deduced
from the strengthening of the idea of the verb by the infinitive…" (b. Sanh 46b)]

9.

Sanhedrin fast for entire day

"For those executed by the court, no rites whatsoever should be
observed…The court that imposed the death
penalty would taste no food all that day." [Semahot II.6; cf
also b. Sanh 63a: "R.
Akiba said: Whence do we know that a
Sanhedrin which executed a person must not eat anything on the day of the
execution? From the verse, Ye shall not eat anything with the
[shedding of] blood."]

"After the interment the mourners
withdraw from the place of burial and the comforters (of whom
there must be at least ten) gather around
them in concentric circles. Singly, they approach at each
mourner's right and say to him, 'Heaven comfort thee!'…" [HI:Sema:101f, II, Note 1]

13.

funeral oration

funeral oration

"There thus arose a third form of formal lamentation, the oration which was usually delivered by a paid
speaker in the vicinity of the grave." [TDNT]...

"In the Mishnah and Sm
(x,8,9; xi, 3) , we read that after standing in the mourners' row and
comforting the mourners, the public was given leave to go in accordance with
what appears to be established custom. In a parallel passage to Sm, the
Talmud informs us that Rabbi Akiba dismissed the public after the funeral oration: 'Return to
your homes in peace'"[HI:Sema:19]

14.

dismissal of public

dismissal of public

"In the Mishnah and Sm
(x,8,9; xi, 3) , we read that after
standing in the mourners' row and comforting the mourners, the public was given leave to go in
accordance with what appears to be established custom. In a parallel passage
to Sm, the Talmud informs us that Rabbi
Akiba dismissed the public after the funeral oration: 'Return to
your homes in peace'"[HI:Sema:19]

15.

(no need, death official)

third-day "inspection" visit to tomb?

third-day "inspection" visit to tomb?

"One may go out to
the cemetery for thirty (some mss. "three") days to inspect the dead for a sign of life…For
it happened that a man was inspected after thirty days, and he went on to
live twenty-five years…" [Semahot
VIII.1; but Klotnick seems to have doubts about this, p.11; see Note 2 below]

16.

at 7 days, sibah ends
(but sheloshim continues until
30 days are over)

at 7 days, sibah ends
(but sheloshim continues until
30 days are over)

"After the funeral,
during a seven-day period called Shiva
(seven) or Avilut (mourning),
mourners remained at home, sitting on low stools or on the floor, a common
sign of mourning. During Shiva,
they were prohibited from conducting business or doing other work, from
bathing, cutting the hair, engaging in sexual relations, wearing leather
shoes, or otherwise engaging in pleasurable activities. It was customary at
this time for relatives and friends to visit and express condolences (B. Moed Katan 28b)…The prohibitions
against cutting one's hair, getting married, and participating in joyous
celebrations or social gathering continued for thirty days from burial (Sheloshim) and, in
the case of the death of one's parent or spouse, for the entire year after
the death." [HI:DictJBP, s.v.
mourning]

17.

At one year, tomb is reopened and bones collected for moving to
family tomb.

At one year, tomb is reopened and bones collected for containment
and/or moving further back within
the tomb.

At one year, tomb is reopened and bones collected for transfer to distant (family) tomb

"The dead were sometimes interred in a temporary grave, a fosse
, where the flesh disintegrated), and from
which the bones were then gathered into small caskets, ossuaries
or ostophagi, for final burial.
The Rabbis refer to this bone gathering practice as "ossilegium", not to be confused
with either burial in a temporary tomb, in which case the corpse apparently
remained intact…" [HI:Sema:158, note
XII.1]...

"A year after the death,
members of the immediate family returned to the tomb for a private ceremony
in which the bones were reburied
after the body had decayed." [HI:DictNTB,
s.v. "Burial Practices, Jewish"]

"M.Sanhedrin
6. 5b refers to this custom in the case of
criminals, first buried in two special cemeteries by the Sanhedrin
of Jerusalem (after the death penalty), then
formally reburied in the family tomb. The bones of a crucified man
have been found in his family tomb." [NBD, s.v. "Burial and
Mourning"]

"When the
flesh had wasted away [of the criminal] they gathered together the
bones and buried them in their own place"
[m. Sanh 6.6 (Danby), footnote:
"The family burying-place"]

18.

Transfer of bones

Semahot XIII

19.

Secondary burial at final tomb

"The funeral was thus conducted without delay, and most bodies
were interred by sunset on the day of death.
But Jewish burial rituals did not conclude with this first, or primary,
burial.A year after the death,
members of the immediate family returned to the tomb for a private ceremony
in which the bones were reburied after the body had decayed." [HI:DictNTB, s.v. "Burial Practices,
Jewish"]

20.

almost no mourning (one day)

"P[alestinian Talmud] informs us that there should be neither lamentations nor elegies in the case of ossilegium; neither the
mourners' blessing, nor comforting of mourners." [HI:Sema:159, note 4]

"In the case of ossilegium, mourning must be observed for only
one day. " [Semahot XII.4]

[Note 1: Not everybody agrees that hanging is automatically
identified with crucifixion--note the comments by Rabbinowicz in
the Soncino Talmud at b. Sanh
46a: "Thisbears no
resemblance at all to crucifixion. Cf. Rabbinowicz, Legislation criminelle du Talmud, p. 111: 'What a difference
between this hanging after death, where the executed man had both his hands tied
and did not remain one minute upon the gallows, and the Supplicium, which the
Romans inflicted upon Jesus, who was nailed to the cross whilst alive, with his
hands on the cross, and left hanging on the gallows all day.'" However,
they seem to overlap enough for the NT authors to relate His death to the 'do
not leave hanging on the tree' verse in the Hebrew bible.]

[Note 2: the 'inspection
period' in the majority of texts is given at 30 days. Klotnick seems to think
that the 3-day reading comes from a later tradition about honorary visits to
the grave of a Sage, at 3 days and at 7 days. Accordingly, it is unclear
whether this 3rd-day inspection task actually was followed.

It is at this point in the research that I begin to
suspect that Richard has been misled by the
ambiguity in the word 'temporary'.

He seems to use the term as in 'temporary holding
area for the body, for a day or two',
when the use in the sources he cites is completely
different (as in 'temporary burial site' for a year).

Richard cites the following
from Semahot X.8, embedded in his
paragraph (cited text in bold):

"…the story
told that “Rabban Gamaliel had a temporary
tomb [lit.‘a borrowed
tomb’] in Yabneh into which they bring the
corpse and lock the door upon it,” just as Joseph does with Jesus, “Later, they would carry the body up to Jerusalem.”[20]"

But for some reason, he as omitted the text in betweenhis two citations. He is the entire passage:

"Rabbi Simeon ben
Eleazar says: 'Rabban Gamaliel had a temporary tomb in Yabneh into which they
used to bring the corpse and lock the door upon it. After forming into a line and comforting the mourners, they would dismiss
the public. Later,
they would carry the body up to Jerusalem."

Zlotnick's
footnotes for this passage read:"'dismiss the pubic'--part of the
burial procedure…'carry the body up to Jerusalem'--for final burial in the family tomb." [HI:Sema:151,152]

The omitted information in the middle clearly indicates that
the 'borrowed tomb' is used for the primary/first FULL burial, complete with
mourning, comforting, and public dismissal. Note that the
mourning in this text is not the 'general', at-home mourning of the
30-day selosim period--but it is the mourning line and
ceremony at the tomb. And the 'dismissal' action described also happened at the
tomb--after the mourning ceremony. This is NOT a 'holding
area' for a body PRIOR TO its first real/formal burial. This is critical to
understand--the 'temporary tomb' (lit. 'borrowed') was the first FULL burial
in a dual-tomb funeral scenario. It was NOT moved up to Jerusalem for its first burial, but for its ossilegium--the final deposition of the
bones in the family tomb (the secondary burial).

"During
the Second Temple period and later, Jews often practiced temporary burial...a
borrowed or temporary cave was used for a limited time, and the occupation of
the cave by the corpse conferred no rights of ownership upon the family...[and]
Jesus'interment was probably of this
nature."

But
the context in which that quote appears shows that Kloner is talking about a primaryburial--a
FULL burial with shroud. He even refers to the 'borrowed tomb' passage in Shemahot we just looked at (and saw it
referred to FULL burial).Here is the
wider passage, with the part Richard quoted in italics
[my emphases in Blue Bold; my notes are in Red Bold]:

"Jesus'
burial took place on the eve of the Sabbath. His would have been a hurried funeral, in observance of the Jewish law that
forbade leaving the corpse unburied overnight-especially on the Sabbath and
religious holidays. The body was simply and hastily covered with a
shroud and placed on a burial bench in a small burial cave. This is the context in which we should
understand John 20:11, in which we are told that Mary "bent over to look
into the tomb," and saw two angels sitting at the head and foot of where
Jesus' body had lain.

"I
would go one step further and suggest that Jesus' tomb was what
the sages refer to as a "borrowed (or temporary) tomb." During
the Second Temple period and later, Jews often practiced temporary burial.
This is reflected, for example, in two quotations
from rabbinic sources involvingburial customs and mourning: [notice how
Kloner also understands the Semahot
X.8 reference to be about burial/mourning--a FULL funeral--as opposed to some
kind of'one-night holding area']

"Whosoever
finds a corpse in a tomb should not move it from its place, unless he knows
that this is a temporary grave.

"Rabbi
Simeon ben Eleazar says: "Rabban Gamliel [sic] had a temporary tomb in
Yabneh into which they bring the corpse and lock the door upon it

"A borrowed or temporary cave was used for a limited
time, and the occupation of the cave by the corpse conferred no rights of
ownership upon the family.[This is simply
why it was called 'borrowed'--since burials normally occurred in family-owned
caves/tombs.]

"Jesus' interment was probably of this nature. He was buried hurriedly on Friday, on the eve of the Sabbath. On the
third day, the day after the Sabbath, Mary Magdalene and another Mary visited
the tomb, as was the Jewish custom.
[The Jewish custom he is referring to is possibly
the 'inspection', a part of the initial, primary burial.]

I should also point out that
Kloner spoke of this 'temporary burial' as something 'often practiced', and
this can only be referring to
Primary/Initial burial. We don't have ANY records of any kind of 'staging area'
being 'used', or especially ANY being called a 'temporary burial' in the Sages.
We DO have tons of primary/secondary burial patterns, using borrowed tombs for
the first (full-mourning) primary burial.

This can be further seen by
looking at the different funeral
procedures associated with Initial/Primary
Burial and with the later (generally one year later) Secondary Burial (ossilegium).

1.The
general accounts of burials and burial praxis describe two stages: (1) burying (with mourning and
rites) in a secluded place, but one which allowed the elements to effect decomposition;
and (2) collection of bones into a container, or corner of the tomb-cave. The temporary grave was used for the decomposition process
(generally lasting a year)--not for 'pre-burial storage'. [Notice how the terms
'temporary burial' and 'temporary grave' are used here--always signifying
initial, full, primary, for-one-year burial:

"Rabbi
Eleazar bar Zadok said: "Thus spoke father at the time of his death: 'My
son, bury me at first in a fosse. In the course of time, collect my bones and put them
in an ossuary; but do not gather them with your own hands. And thus
did I attend him: Johanan entered, collected the bones, and spread a sheet over
them. I then came in, rent my clothes for them, and sprinkled dried herbs over
them…Just as he attended his father, so I attended him." [Semahot XII.9]

"The dead were sometimes interred in a temporary grave, a
fosse , where the flesh disintegrated, and from which the bones were
then gathered into small caskets, ossuaries or ostophagi,
for final burial. The Rabbis refer
to this bone gathering practice as "ossilegium", not to be confused with either burialin a temporary tomb, in which case
the corpse apparently remained intact…" [HI:Sema:158,
note XII.1]

[Soncino Note: 'It was an
ancient custom to give first a temporary
burial, and after the flesh had decayed to transfer the bones to a
reserved tomb or mausoleum, where they were kept in cedar or marble coffins.
Cf. Sem. XII'.(b. Mo'ed
Katan8a)]

2.We have seen that initial burial always involved the 7-day and 30-day
mourning/passivity periods. In
contrast, secondary burial involved little/none of this--the REAL
burial was done at the time of death:

"In the
case of ossilegium, mourning must
be observed for only one day. As a
consequence, the bones are gathered only near nightfall. If while gathering
them all that day, night falls, a man is released from the obligation of
mourning on the very next day." [Semahot
XII.4]

"P[alestinian
Talmud] informs us that there should be neither
lamentations nor elegies in the case of ossilegium;
neither the mourners' blessing, nor comforting of mourners." [HI:Sema:159, note 4]

Richard is
obviously aware of most of this process, since he refers to much of it in his
section on "Temporary Holding vs. Secondary Burial". But it is in
that section that the inconsistency we mentioned at first arises :

"Whereas temporary storage is not burial at all, but the use of
a holding place until burial can be performed, much like we store
bodies at a morgue today, secondary burial is an actual second act of burial
(tanknote: where was the first act of real burial?), where it is permitted to
enter a tomb and 'disturb' the dead with proper reverence, so that the bones
can be reconsecrated in a new grave."

We have seen
from the source material above that a burial--A
FULL ONE--is what is demanded by the rabbincs, which for most people
would be filled with rites, mourning, comforting, relaxed religious
requirements etc. For the executed, it would include washing, anointing,
binding, shroud, and sealing the tomb. The term 'temporary burial' --as used in
the sources he has cited--DOES
MEAN burial, but it doesn’t include all aspects (i.e., the ossilegium) of the overall process. It is NOT a 'holding area' prior
to the initial burial (in a
borrowed tomb, in a family tomb, or in a common or criminal graveyard).

One final point: In a criminal graveyard scenario, that burial would be a 'temporary burial', since the
bones would be collected a
year later by the family, and the bones would have then been
relocated/placed in the family tomb. So, a criminal burial is a special case of
the two-tomb funeral/burial scenario (but one without the mourning rites).

But
there may be a different problem hiding in here for Richard--another anachronism.

We have seen already that the use of the Rabbinic
material to 'portray' actual pre-Destruction legal custom is anachronistic, and
we could very easily be encountering another one with the term 'borrowed tomb'.
In have offered one explanation for the cases and texts that Richard uses for
moving a body, but there is another possible interpretation of the data that
must be considered. Let's look at those texts again…

First, if we look at Semahot 10.8 (""Rabbi Simeon ben
Eleazar says: 'Rabban Gamaliel had a temporary tomb in Yabneh into which they
used to bring the corpse and lock the door upon it. After forming into a line
and comforting the mourners, they would dismiss the public. Later, they would
carry the body up to Jerusalem.", we can see three historical markers in
it:

1."Rabban
Gamaliel" was the grandson of Gameliel the Elder (of NT fame).
He was in the second generation of Tannaites (c90-130), and was the leader of
rabbinic Judaism between 80 or 90 ad and c. 110. "He played a significant
role in the development of the center of rabbinic learning at Yabneh and in the
struggle to establish that center, its patriarch, and court as the center of
Judaism." [DJBP, s.v. "Gameliel II"]